EXHIBIT 4.1
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$325,000,000
LOAN AND SECURITY AGREEMENT
Dated as of April 18, 2002
▇▇▇▇▇▇▇ CORPORATION
CERTAIN OF ITS SUBSIDIARIES
(the Borrowers)
and
THE FINANCIAL INSTITUTIONS PARTY
HERETO FROM TIME TO TIME
(the Lenders)
and
JPMORGAN CHASE BANK
SUNTRUST BANK
(the Co-Syndication Agents)
THE CIT GROUP/BUSINESS CREDIT, INC.
BANK OF AMERICA, N.A.
(the Co-Documentation Agents)
WACHOVIA BANK, NATIONAL ASSOCIATION
GENERAL ELECTRIC CAPITAL CORPORATION
(the Co-Agents)
and
FLEET CAPITAL CORPORATION
(the Administrative Agent)
----------------------------
Arranged by:
FLEET SECURITIES, INC.
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TABLE OF CONTENTS(1)
Page
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions.................................................................................1
Section 1.2 General Interpretive Rules.................................................................36
Section 1.3 Exhibits, Annexes and Schedules............................................................37
ARTICLE 2
REVOLVING CREDIT FACILITY
Section 2.1 Revolving Credit Loans.....................................................................38
Section 2.2 Manner of Borrowing........................................................................38
Section 2.3 Repayment; Prepayment......................................................................40
Section 2.4 Revolving Credit Note......................................................................41
ARTICLE 2A
Section 2A.1 Swingline Loans............................................................................42
Section 2A.2 Making Swingline Loans.....................................................................42
Section 2A.3 Repayment of Swingline Loans...............................................................42
Section 2A.4 Prepayment.................................................................................42
Section 2A.5 Swingline Note.............................................................................43
Section 2A.6 Settlement with Other Lenders..............................................................43
ARTICLE 3
LETTER OF CREDIT GUARANTEES
Section 3.1 Agreement to Issue.........................................................................44
Section 3.2 Amounts....................................................................................44
Section 3.3 Conditions.................................................................................44
Section 3.4 Issuance of Letter of Credit Guarantees....................................................44
Section 3.5 Duties of FCC..............................................................................45
Section 3.6 Payment of Reimbursement Obligations.......................................................46
Section 3.7 Participations.............................................................................46
Section 3.8 Indemnification; Exoneration...............................................................48
Section 3.9 Supporting Letter of Credit; Cash Collateral Account.......................................49
ARTICLE 4
TERM LOAN FACILITY
Section 4.1 Term Loans.................................................................................51
Section 4.2 Manner of Borrowing Term Loan..............................................................51
---------
(1) This Table of Contents is included for reference purposes only and
does not constitute part of the Loan and Security Agreement.
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Section 4.3 Repayment of Term Loan.....................................................................51
Section 4.4 Term Notes.................................................................................51
ARTICLE 5
GENERAL LOAN PROVISIONS
Section 5.1 Interest...................................................................................52
Section 5.2 Certain Fees; Agent Fee....................................................................53
Section 5.3 Conversion or Continuation of Loans........................................................54
Section 5.4 Conversion or Continuation.................................................................55
Section 5.5 Manner of Payment..........................................................................55
Section 5.6 General....................................................................................55
Section 5.7 Loan Accounts; Statements of Account.......................................................55
Section 5.8 Reduction of Revolving Credit Facility; Termination of Agreement...........................56
Section 5.9 Making of Loans............................................................................57
Section 5.10 Settlement Among Lenders...................................................................59
Section 5.11 Payments Not at End of Interest Period; Failure to Borrow..................................63
Section 5.12 Assumptions Concerning Funding of LIBOR Loans..............................................64
Section 5.13 Duration of Interest Periods; Maximum Number of LIBOR Loans; Minimum Increments;
Option to Forgo Notes......................................................................64
Section 5.14 Changed Circumstances......................................................................64
Section 5.15 Net Payments...............................................................................66
Section 5.16 Cash Collateral Account; Investment Accounts...............................................69
Section 5.17 Borrowers' Representative..................................................................70
Section 5.18 Joint and Several Liability; No Modification or Release of Obligations.....................71
Section 5.19 Obligations Absolute.......................................................................71
Section 5.20 Waiver of Suretyship Defenses..............................................................72
Section 5.21 Defaulting Lender's Status.................................................................72
ARTICLE 6
CONDITIONS PRECEDENT
Section 6.1 Conditions Precedent to Initial Loans......................................................74
Section 6.2 All Loans and Letters of Credit............................................................77
Section 6.3 Conditions as Covenants....................................................................78
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BORROWERS
Section 7.1 Representations and Warranties.............................................................79
Section 7.2 Survival of Representations and Warranties, Etc............................................89
ARTICLE 8
SECURITY INTEREST
Section 8.1 Security Interest..........................................................................90
Section 8.2 Continued Priority of Security Interest....................................................90
Section 8.3 Releases...................................................................................91
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ARTICLE 9
COLLATERAL COVENANTS
Section 9.1 Collection of Accounts.....................................................................93
Section 9.2 Verification and Notification..............................................................94
Section 9.3 Disputes, Returns and Adjustments..........................................................94
Section 9.4 Invoices...................................................................................95
Section 9.5 Delivery of Instruments....................................................................95
Section 9.6 Sales of Inventory.........................................................................95
Section 9.7 Ownership and Defense of Title.............................................................95
Section 9.8 Insurance..................................................................................96
Section 9.9 Location of Offices and Collateral.........................................................96
Section 9.10 Records Relating to Collateral.............................................................97
Section 9.11 Inspection.................................................................................97
Section 9.12 Information and Reports....................................................................98
Section 9.13 Power of Attorney..........................................................................99
Section 9.14 Additional Real Estate and Leases..........................................................99
Section 9.15 Assignment of Claims Act..................................................................100
ARTICLE 10
AFFIRMATIVE COVENANTS
Section 10.1 Preservation of Corporate Existence and Similar Matters...................................101
Section 10.2 Compliance with Applicable Law............................................................101
Section 10.3 Maintenance of Property...................................................................101
Section 10.4 Conduct of Business.......................................................................101
Section 10.5 Insurance.................................................................................101
Section 10.6 Payment of Taxes and Claims...............................................................102
Section 10.7 Accounting Methods and Financial Records..................................................102
Section 10.8 Use of Proceeds...........................................................................102
Section 10.9 Hazardous Waste and Substances; Environmental Requirements................................102
Section 10.10 Execution of Subsidiary Guaranties; Additional Borrowers..................................103
ARTICLE 11
INFORMATION
Section 11.1 Financial Statements......................................................................104
Section 11.2 Accountants' Certificate..................................................................105
Section 11.3 Officer's Certificate.....................................................................105
Section 11.4 Copies of Other Reports...................................................................105
Section 11.5 Notice of Litigation and Other Matters....................................................106
Section 11.6 ERISA.....................................................................................106
Section 11.7 Revisions or Updates to Schedules.........................................................107
ARTICLE 12
NEGATIVE COVENANTS
Section 12.1 Financial Ratios..........................................................................108
Section 12.2 Debt......................................................................................108
Section 12.3 Guaranties................................................................................109
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Section 12.4 Investments...............................................................................109
Section 12.5 Capital Expenditures......................................................................112
Section 12.6 Restricted Distributions and Payments, Etc................................................112
Section 12.7 Merger, Consolidation and Sale of Assets..................................................112
Section 12.8 Transactions with Affiliates..............................................................113
Section 12.9 Liens.....................................................................................113
Section 12.10 Amendments of Other Agreements............................................................113
ARTICLE 13
DEFAULT
Section 13.1 Events of Default.........................................................................114
Section 13.2 Remedies..................................................................................116
Section 13.3 Application of Proceeds...................................................................119
Section 13.4 Power of Attorney.........................................................................119
Section 13.5 Miscellaneous Provisions Concerning Remedies..............................................120
Section 13.6 Trademark License.........................................................................120
ARTICLE 14
ASSIGNMENTS
Section 14.1 Successors and Assigns; Participations....................................................122
Section 14.2 Representation of Lenders.................................................................125
ARTICLE 15
ADMINISTRATIVE AGENT
Section 15.1 Appointment of Administrative Agent.......................................................126
Section 15.2 Delegation of Duties......................................................................126
Section 15.3 Exculpatory Provisions....................................................................126
Section 15.4 Reliance by Administrative Agent..........................................................126
Section 15.5 Notice of Default.........................................................................127
Section 15.6 Non-Reliance on Administrative Agent, Other Agents and Other Lenders......................127
Section 15.7 Indemnification...........................................................................128
Section 15.8 Administrative Agent in Its Individual Capacity...........................................128
Section 15.9 Successor Administrative Agent............................................................128
Section 15.10 Other Agents..............................................................................129
ARTICLE 16
MISCELLANEOUS
Section 16.1 Notices...................................................................................131
Section 16.2 Expenses..................................................................................132
Section 16.3 Stamp and Other Taxes.....................................................................133
Section 16.4 Setoff....................................................................................133
Section 16.5 Litigation................................................................................134
Section 16.6 Waiver of Rights..........................................................................135
Section 16.7 Consent to Advertising and Publicity......................................................135
Section 16.8 Reversal of Payments......................................................................135
Section 16.9 Injunctive Relief.........................................................................136
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Section 16.10 Accounting Matters........................................................................136
Section 16.11 Amendments................................................................................136
Section 16.12 Assignment................................................................................138
Section 16.13 Performance of Borrowers' Duties..........................................................138
Section 16.14 Indemnification...........................................................................138
Section 16.15 All Powers Coupled with Interest..........................................................138
Section 16.16 Survival..................................................................................139
Section 16.17 Titles and Captions.......................................................................139
Section 16.18 Severability of Provisions................................................................139
Section 16.19 Governing Law.............................................................................139
Section 16.20 Counterparts..............................................................................139
Section 16.21 Reproduction of Documents.................................................................139
Section 16.22 Term of Agreement.........................................................................140
Section 16.23 Pro-Rata Participation....................................................................140
Section 16.24 Confidentiality...........................................................................140
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A COMMITMENTS
ANNEX B PRICING MATRIX
ANNEX C BORROWERS AND SUBSIDIARY GUARANTORS
ANNEX D EFFECTIVE DATE LETTERS OF CREDIT
EXHIBIT A-1 FORM OF REVOLVING CREDIT NOTE
EXHIBIT A-2 FORM OF SWINGLINE NOTE
EXHIBIT B FORM OF TERM NOTE
EXHIBIT C FORM OF BORROWING BASE CERTIFICATE
EXHIBIT D FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT E-1 FORM OF CONFIRMATION OF NOTICE OF BORROWING (REVOLVING CREDIT LOAN)
EXHIBIT E-2 FORM OF CONFIRMATION OF NOTICE OF BORROWING (SWINGLINE LOAN)
EXHIBIT F FORM OF NOTICE OF CONVERSION OR CONTINUATION
EXHIBIT G FORM OF COVENANT COMPLIANCE CERTIFICATE
EXHIBIT H FORM OF SUBSIDIARY GUARANTY
EXHIBIT I FORM OF GUARANTOR SECURITY AGREEMENT
Schedule 1.1A Assets Held For Sale
Schedule 1.1B Permitted Investments
Schedule 1.1C Permitted Liens
Schedule 1.1D Designated Account Debtors
Schedule 6.1(c)(11) Environmental Reports
Schedule 7.1(a) Organization
Schedule 7.1(b) Capitalization
Schedule 7.1(c) Subsidiaries; Ownership of Stock
Schedule 7.1(e) Compliance with Laws
Schedule 7.1(g) Governmental Approvals
Schedule 7.1(h) Title to Properties
Schedule 7.1(i) Liens
Schedule 7.1(j) Indebtedness and Guaranties
Schedule 7.1(k) Litigation
Schedule 7.1(l) Tax Matters
Schedule 7.1(p) ERISA
Schedule 7.1(t) Location of Offices and Records
Schedule 7.1(u) Location of Inventory
Schedule 7.1(v) Equipment
Schedule 7.1(w) Bank Accounts
Schedule 7.1(x) Intellectual Property
Schedule 7.1(y) Real Estate
Schedule 7.1(z) Corporate and Fictitious Names
Schedule 7.1(cc) Employee Relations
Schedule 7.1(dd) Trade Names
Schedule 10.8 Use of Proceeds
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LOAN AND SECURITY AGREEMENT
Dated as of April 18, 2002
▇▇▇▇▇▇▇ CORPORATION, an Alabama corporation, its subsidiaries named as
"Borrowers" on ANNEX C hereto, the financial institutions party to this
Agreement from time to time (the "Lenders"), JPMORGAN CHASE BANK and SUNTRUST
BANK (each, a Syndication Agent), THE CIT GROUP/BUSINESS CREDIT, INC. and BANK
OF AMERICA, N.A. (each, a Documentation Agent), WACHOVIA BANK, NATIONAL
ASSOCIATION and GENERAL ELECTRIC CAPITAL CORPORATION (each, a Co-Agent), and
FLEET CAPITAL CORPORATION, a Rhode Island corporation, as administrative agent
for the Lenders, agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. For the purposes of this Agreement:
"Account Debtor" means a Person who is obligated on a Account.
"Accounts" has the meaning set forth in the definition "Collateral".
"ACH Transfer" means and refers to the transfer of funds within or
between financial institutions using electronic credits and debits in
accordance with procedures promulgated by the National Automated Clearing House
Association or any related regional association.
"Acquire" or "Acquisition" means the acquisition of (i) a Business
Unit or (ii) the majority of the Equity Interests in another Person, by
purchase, exchange, issuance of stock or other securities, or by merger,
reorganization or any other method.
"Acquisition Target" means a Person or Business Unit proposed to be
Acquired by a Borrower for consideration that includes proceeds of a Borrowing.
"Administrative Agent" means FCC and any successor agent appointed
pursuant to SECTION 15.9 hereof.
"Affected Lender" has the meaning set forth in SECTION 5.9(d).
"Affiliate" means, with respect to a Person, (a) any partner, officer,
shareholder or member (if holding more than 10% of the outstanding Equity
Interests of such Person), director, manager, employee or managing agent of
such Person, (b) any spouse, parents, siblings, children or grandchildren of
such Person, (c) any corporation, limited liability company, association,
partnership, trust, entity or enterprise in which such Person is a director,
executive officer, manager or general partner, and (d) any other Person (other
than a Subsidiary) that, (i) directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such given Person, (ii) directly or indirectly beneficially owns or holds 10%
or more of any class of voting stock or partnership or membership or other
voting interest of such
Person or any Subsidiary of such Person, or (iii) 10% or more of the voting
stock or partnership or membership or other voting interest of which is
directly or indirectly beneficially owned or held by such Person or a
Subsidiary of such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities or
partnership or other voting interest, by contract or otherwise. Notwithstanding
any provision of the foregoing to the contrary, each Subsidiary of a Lender
shall be deemed an Affiliate of such Lender.
"Agent's Office" means the office of the Administrative Agent
specified in or determined in accordance with the provisions of SECTION 16.1.
"Agreement" means and includes this Agreement, including all
Schedules, Exhibits and other attachments hereto, and all amendments,
modifications and supplements hereto and thereto.
"Agreement Date" means the date as of which this Agreement is dated.
"Aircraft Security Agreement" means the Aircraft Security Agreement
and Assignment of Rents dated on or about the Effective Date between ▇▇▇▇▇▇▇
and the Administrative Agent, pursuant to which ▇▇▇▇▇▇▇ assigns, mortgages and
pledges to the Administrative Agent all of its right, title and interest in and
to the aircraft and engines therein described as security for its obligations
under this Agreement and the other Loan Documents.
"Anniversary" means each anniversary of the Effective Date.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and of all
orders and decrees of all courts and arbitrators, including, without
limitation, Environmental Laws.
"Applicable Margin" means as to each Type of Loan under each Facility,
the Tier II rate per annum set forth under the appropriate caption on the
pricing matrix attached hereto as ANNEX B, subject to quarterly adjustment as
follows: From and after the delivery of the consolidated quarterly financial
statements of ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries for each Fiscal Quarter
and the related officer's certificate in accordance with the respective
provisions of SECTIONS 11.1(b) and 11.3, the foregoing percentages will be
adjusted effective December 29, 2002 and as of the first day of each succeeding
Fiscal Quarter thereafter, that begins at least 10 days after delivery of
quarterly financial statements and the related officer's certificate for the
previous Fiscal Quarter (each, a "Margin Adjustment Date"), to the percentages
set forth in ANNEX B that correspond to the Fixed Charge Coverage Ratio
covenant calculation reflected in such financial statements and the related
certificate; PROVIDED, that if and for so long as a Default or Event of Default
exists, no downward adjustment in the Applicable Margin otherwise indicated
shall be effected.
"Appraised Value" means (i) as applied to Inventory, the orderly
liquidation value of such Inventory, net of liquidation expenses, as determined
and reported on not less frequently than semi-annually by a qualified
independent appraiser or, at the Administrative Agent's election, by
professional appraisers employed by FCC or another Lender, including the
"recovery percentages" set forth in each report of Appraised Value as to
Inventory consisting of raw materials, work-in-process and finished goods,
which recovery percentages will be applied
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making the calculations provided for in CLAUSE (b)(ii) of the definition
"Borrowing Base" and (ii) as applied to Equipment and Real Estate, the orderly
liquidation value (net of liquidation expenses) or fair market value thereof,
as specified, as determined by a qualified appraiser prior to the Effective
Date and reflected in the reports referred to in SECTION 6.1(c)(23) or
thereafter at the Administrative Agent's election.
"Arranger" means FSI.
"Asset Disposition" means the disposition (including by a
sale/leaseback transaction) of any asset of a Borrower or any of its
Subsidiaries having a value (at the higher of net book value and fair market
value) greater than $10,000, other than sales of Inventory in the ordinary
course of business, dispositions of worn-out and obsolete Equipment no longer
useful in the Borrowers' business, consistent with past practices of ▇▇▇▇▇▇▇,
and dispositions of assets to any Loan Party.
"Assets Held For Sale" means the capital assets described on SCHEDULE
1.1A - ASSETS HELD FOR SALE.
"Assignment and Acceptance" means an assignment and acceptance in the
form attached hereto as EXHIBIT D assigning all or a portion of a Lender's
interests, rights and obligations under this Agreement pursuant to SECTION
14.1.
"Availability" means at any time (a) the Borrowing Base at such time
minus (b) the aggregate outstanding principal amount of Revolving Credit Loans
and Swingline Loans at such time.
"Bank" means Fleet National Bank, a national banking association.
"Base Rate" means the rate of interest announced or quoted by Bank
from time to time as its prime rate for commercial loans, whether or not such
rate is the lowest rate charged by Bank to its most preferred borrowers, and,
if such prime rate for commercial loans is discontinued by Bank as a standard,
a comparable reference rate designated by Bank as a substitute therefor shall
be the Base Rate.
"Base Rate Loan" means a Loan bearing interest determined with
reference to the Base Rate.
"Base Rate Revolving Credit Loan" means each Base Rate Loan
outstanding under the Revolving Credit Facility.
"Base Rate Term Loan" means each Base Rate Loan outstanding under the
Term Loan Facility.
"Benefit Plan" means an "employee benefit plan" as defined in Section
3(3) of ERISA (other than a Multiemployer Plan) in respect of which a Borrower
or any Related Company is, or within the immediately preceding six years was,
an "employer" as defined in Section 3(5) of ERISA, including such plans as may
be established after the Agreement Date.
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"Borrower" means each of ▇▇▇▇▇▇▇, each Subsidiary listed as a
"Borrower" on ANNEX C hereto, and each other Person that becomes a party to
this Agreement as a "Borrower" after the Effective Date pursuant to SECTION
10.10.
"Borrowers' Representative" means ▇▇▇▇▇▇▇ and each successor in such
capacity appointed pursuant to SECTION 5.17.
"Borrowing" means Loans under a single Facility and of a single Type,
made by all Lenders Ratably on the same date and, in the case of LIBOR Loans,
for the same Interest Period.
"Borrowing Base" means at any time an amount equal to the lesser of:
(a) the Revolving Credit Facility, minus the Letter of Credit
Reserve, and
(b) an amount equal to
(i) 85% of the face value of Eligible Accounts and
Eligible Amounts Due from Factor due and owing at such time, plus
(ii) the lesser of: (A) the sum of 50% as to raw
materials and work in process and 60% as to finished goods, in each
case of the value of Eligible Inventory consisting of such items,
determined on the basis of the lesser of FIFO cost and market value
and (B) 85% of the Appraised Value of Eligible Inventory, plus
(iii) the L/C Inventory Amount, plus
(iv) during the period April 15 through August 31 of each
Fiscal Year, the Seasonal Increase, minus
(v) the Letter of Credit Reserve, minus
(vi) the Dilution Reserve, minus
(vii) the Environmental Compliance Reserve (which on the
Effective Date is zero), minus
(viii) the Royalty Reserve;
where "Seasonal Increase" means 10% of the value of Eligible Inventory,
determined on the basis of the lesser of FIFO cost and market value.
"Borrowing Base Certificate" means a certificate in the form attached
hereto as EXHIBIT C or in such other form as ▇▇▇▇▇▇▇ and the Administrative
Agent may agree.
"Business Day" means any day other than a Saturday, Sunday or other
day on which banks in Atlanta, Georgia, Hartford, Connecticut or New York, New
York are authorized to close and, when used with respect to LIBOR Loans, means
any such day on which dealings in Dollar deposits are also carried on in the
London interbank market.
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"Business Unit" means the assets constituting the business or a
division or operating unit thereof of any Person.
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets (other
than Inventory or assets which constitute a Business Unit) which are not, in
accordance with GAAP, treated as expense items for such Person in the year made
or incurred or as a prepaid expense applicable to a future year or years.
"Capitalized Lease" means a lease that is required to be capitalized
for financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a Capitalized Lease, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cash Collateral" means collateral consisting of cash or Cash
Equivalents on which the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders, has a first priority Lien.
"Cash Collateral Account" means a special interest-bearing Deposit
Account consisting of cash maintained at the principal office of the
Administrative Agent and under the sole dominion and control of the
Administrative Agent, for its benefit and for the benefit of the Lenders,
established pursuant to the provisions of SECTION 5.16(a) for purposes set
forth therein.
"Cash Equivalents" means
(a) Dollars;
(b) securities issued or directly and fully guaranteed or insured
by the United States government or any agency or instrumentality thereof or any
state having maturities of not more than one year after the date of
acquisition;
(c) certificates of deposit and Eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case with any Lender or any domestic commercial bank or U.S. branch of
a foreign commercial bank having capital and surplus in excess of $250 million
and a ▇▇▇▇▇▇▇▇ Bank Watch Rating of "B" or better;
(d) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in CLAUSES (b) and (c)
above entered into with any financial institution meeting the qualifications
specified in said CLAUSE (c); and
(e) commercial paper having the highest rating obtainable from
▇▇▇▇▇'▇ or S&P and in each case maturing within 270 days after the date of
acquisition.
"Class" as applied to any Loans, means all Loans outstanding at the
time under the same Facility.
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"Clearing Bank" means Bank, Wachovia Bank, National Association,
SunTrust Bank and AmSouth Bank and any other banking institution with which a
Controlled Account has been established pursuant to a Control Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means and includes all of each Loan Party's right, title
and interest in and to each of the following, wherever located and whether now
or hereafter existing or now owned or hereafter acquired or arising:
(a) (i) all rights to the payment of money or other forms of
consideration of any kind (whether classified under the UCC as accounts,
chattel paper, general intangibles or otherwise) including, but not limited to,
accounts receivable, letter of credit rights, chattel paper, tax refunds,
insurance proceeds, any rights under contracts not yet earned by performance
and not evidenced by an instrument or chattel paper, notes, drafts,
instruments, documents, acceptances and all other debts, obligations and
liabilities in whatever form from any Person, (ii) all guaranties, security,
other supporting obligations and Liens securing payment thereof, (iii) all
goods, whether now owned or hereafter acquired, and whether sold, delivered,
undelivered, in transit or returned, which may be represented by, or the sale
or lease of which may have given rise to, any such right to payment or other
debt, obligation or liability, and (iv) all proceeds of any of the foregoing
(the foregoing, collectively, "Accounts"),
(b) (i) all inventory, (ii) all goods intended for sale or lease
or for display or demonstration, (iii) all work-in-process, (iv) all raw
materials and other materials and supplies of every nature and description used
or which might be used in connection with the manufacture, packing, shipping,
advertising, selling, leasing or furnishing of goods or services or otherwise
used or consumed in the conduct of business, and (v) all documents evidencing
and general intangibles relating to any of the foregoing (the foregoing,
collectively, "Inventory"),
(c) (i) all machinery, apparatus, equipment, motor vehicles,
tractors, trailers, rolling stock, fittings, fixtures and other tangible
personal property (other than Inventory) of every kind and description, (ii)
all tangible personal property (other than Inventory) and fixtures used in such
Loan Party's business operations or owned by such Loan Party or in which such
Loan Party has an interest, and (iii) all parts, accessories and special tools
and all increases and accessions thereto and substitutions and replacements
therefor, excluding, however, any such property that is subject to a lease or
Lien permitted to exist by this Agreement, the terms of which prohibit the
creation of the Security Interest therein, for so long as such prohibition
remains in effect (the foregoing, collectively, "Equipment"),
(d) all general intangibles, choses in action and causes of
action and all other intangible personal property of every kind and nature
(other than Accounts), including, without limitation, commercial tort claims,
Intellectual Property, Equity Interests, corporate or other business records,
inventions, designs, blueprints, plans, specifications, trade secrets,
goodwill, computer software, customer lists, registrations, licenses,
franchises, tax refund claims, reversions or any rights thereto and any other
amounts payable to such Person from any Benefit Plan, Multiemployer Plan or
other employee benefit plan, rights and claims against carriers and shippers,
rights to indemnification, business interruption insurance and proceeds
thereof,
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property, casualty or any similar type of insurance and any proceeds thereof,
the beneficiary's interest in proceeds of insurance covering the lives of key
employees and any letter of credit, guarantee, claims, security interest,
supporting obligation or other security for the payment by an Account Debtor of
any of the Accounts (the foregoing, collectively, "General Intangibles"),
(e) any demand, time, savings, passbook, money market or like
depository account, and all certificates of deposit, maintained with a bank,
savings and loan association, credit union or like organization, other than an
account evidenced by a certificate of deposit that is an instrument under the
UCC (the foregoing, collectively, "Deposit Accounts"),
(f) all certificated and uncertificated securities, all security
entitlements, all securities accounts, all commodity contracts, all commodity
accounts and all other investment property (the foregoing, collectively,
"Investment Property"),
(g) (i) any investment account maintained by or on behalf of such
Loan Party with the Administrative Agent or any Lender or any Affiliate of the
Administrative Agent or any Lender, (ii) any agreement governing such account,
(iii) all cash, money, notes, securities, instruments, goods, accounts,
documents, chattel paper, general intangibles and other property now or
hereafter held by the Administrative Agent or any Lender or any Affiliate of
the Administrative Agent or any Lender on behalf of such Loan Party in
connection with such investment account or deposited by such Loan Party or on
such Loan Party's behalf to such investment account or otherwise credited
thereto for such Loan Party's benefit, or distributable to such Loan Party from
such investment account, together with all contracts for the sale or purchase
of the foregoing, (iv) all of such Loan Party's right, title and interest with
respect to the deposit, investment, allocation, disposition, distribution or
withdrawal of the foregoing, (v) all of such Loan Party's right, title and
interest with respect to the making of amendments, modifications or additions
of or to the terms and conditions under which the investment account or
investments maintained therein is to be maintained by such Loan Party, the
Administrative Agent, any Lender or any Affiliate of the Administrative Agent
or any Lender on such Loan Party's behalf, and (vi) all of such Loan Party's
books, records and receipts pertaining to or confirming any of the foregoing
(the foregoing, collectively, "Investment Accounts"),
(h) all cash or other property deposited with the Administrative
Agent or any Lender or any Affiliate of the Administrative Agent or any Lender
or which the Administrative Agent, for its benefit and for the benefit of the
Lenders, or any Lender or such Affiliate is entitled to retain or otherwise
possess as collateral pursuant to the provisions of this Agreement or any of
the Loan Documents or any agreement relating to any Letter of Credit,
including, without limitation, amounts on deposit in the Cash Collateral
Account,
(i) all goods and other property, whether or not delivered, (i)
the sale or lease of which gives or purports to give rise to any Account,
including, but not limited to, all merchandise returned or rejected by or
repossessed from customers, or (ii) securing any Account, including, without
limitation, all rights as an unpaid vendor or lienor (including, without
limitation, stoppage in transit, replevin and reclamation) with respect to such
goods and other properties,
7
(j) all mortgages, deeds to secure debt and deeds of trust on
real or personal property, guaranties, leases, security agreements, supporting
obligations and other agreements and property which secure or relate to any
Account or other Collateral or are acquired for the purpose of securing and
enforcing any item thereof,
(k) all documents of title, including bills of lading and
warehouse receipts, policies and certificates of insurance, securities, chattel
paper and other documents and instruments,
(l) all files, correspondence, computer programs, tapes, disks
and related data processing software which contain information identifying or
pertaining to any of the Collateral or any Account Debtor or showing the
amounts thereof or payments thereon or otherwise necessary or helpful in the
realization thereon or the collection thereof, and
(m) any and all products and cash and non-cash proceeds of the
foregoing (including, but not limited to, any claims to any items referred to
in this definition and any claims against third parties for loss of, damage to
or destruction of any or all of the Collateral or for proceeds payable under or
unearned premiums with respect to policies of insurance) in whatever form,
including, but not limited to, cash, negotiable instruments and other
instruments for the payment of money, chattel paper, security agreements and
other documents.
Notwithstanding anything herein to the contrary, except as specified in SECTION
6.1(c) or SECTION 9.12(e), the Collateral shall not include (i) any agreement
with a third party existing on the Effective Date (or executed after the date
hereof but that is permitted by the proviso below) that prohibits the grant of
a Lien on (but not merely the assignment of or of any interest in) such
agreement or any Loan Party's rights thereunder without the consent of such
third party or under which a consent to such grant is otherwise required, which
consent has not been obtained, except to the extent provided by Sections 9-406
through 9-409 of the UCC, or (ii) any license, permit or other Governmental
Approval that, under the terms and conditions of such Governmental Approval (or
any Collateral subject thereto) or under Applicable Law, cannot be subjected to
a Lien in favor of the Administrative Agent without consent which consent has
not been obtained; PROVIDED, HOWEVER, that the Collateral shall include all
items excluded pursuant to CLAUSE (i) OR (ii) from and after the date on which
the requisite consent is obtained; and, PROVIDED FURTHER, that the Loan Parties
may, after the Effective Date, enter into agreements containing the prohibition
described in CLAUSE (i) if the value of the property subject thereto and which
would otherwise constitute Collateral, when added to the value of all other
property subject to agreements entered into after the Effective Date and
including such prohibition, would not exceed $10,000,000.
"Commitment" means, as to each Lender, the amount set forth opposite
such Lender's name on ANNEX A hereto, representing such Lender's aggregate
obligation, upon and subject to the terms and conditions of this Agreement
(including the applicable provisions of SECTION 14.1), to make its Ratable
Share of Loans under the Revolving Credit Facility (including to repay
Swingline Loans) and the Term Loan Facility and to purchase participations in
Letters of Credit or, from and after the date hereof, as set forth in the
Register representing such Lender's obligation to make its Ratable Share of
Loans under the Revolving Credit Facility (including to repay Swingline Loans)
and to purchase participations in Letters of Credit Guarantees, and its
interest in the Term Loans outstanding.
8
"Commitment Percentage" means, as to any Lender at the time of
determination, the percentage obtained by dividing such Lender's Commitment at
such time by the aggregate Commitments at such time.
"Consolidated Subsidiaries" means, each Borrower (other than ▇▇▇▇▇▇▇)
and any other Subsidiary of ▇▇▇▇▇▇▇ whose accounts are at the time in question,
in accordance with GAAP, consolidated with those of ▇▇▇▇▇▇▇.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, or any constituent of any such substance or waste.
"Control Agreement" means an agreement among a Loan Party, the
Administrative Agent and a Clearing Bank, in form and substance satisfactory to
the Administrative Agent, concerning the collection and transfer of payments
which represent the proceeds of Accounts or of any other Collateral.
"Controlled Account" means a Deposit Account of a Loan Party
maintained by it with a Clearing Bank subject to a Control Agreement.
"Copyrights" means and includes, in each case whether now existing or
hereafter arising or acquired, all of each Borrower's right, title and interest
in and to
(a) all copyrights, rights and interests in copyrights, works
protectable by copyright, copyright registrations and copyright applications;
(b) all renewals of any of the foregoing;
(c) all income, royalties, damages and payments now or hereafter
due and/or payable under any of the foregoing, including, without limitation,
damages or payments for past or future infringements of any of the foregoing;
(d) the right to ▇▇▇ for past, present and future infringements
of any of the foregoing; and
(e) all rights corresponding to any of the foregoing throughout
the world.
"Cross Creek Pledge Agreement" means the Stock Pledge Agreement dated
on or about the Effective Date made by Cross Creek Holdings, Inc. in favor the
Administrative Agent, with respect to the pledge to the Administrative Agent of
the Equity Interests of Cross Creek Apparel, LLC.
"Cross Creek Apparel Pledge Agreement" means the Stock Pledge
Agreement dated on or about the Effective Date made by Cross Creek Apparel, LLC
in favor the Administrative Agent, with respect to the pledge to the
Administrative Agent of all of the Equity Interests of ▇▇▇▇▇▇▇ Asset
Management, Inc. and 65% of the Equity Interests of Cross Creek ▇▇ ▇▇▇▇▇▇▇,
▇.▇. de C.V.
9
"Debt" means, as to any Person at any time, the aggregate outstanding
principal amount for which such Person is liable, of the following:
(a) Indebtedness for money borrowed,
(b) Indebtedness, whether or not in any such case the same was
for money borrowed,
(i) represented by notes payable, drafts accepted, and
other similar instruments that represent extensions of credit,
(ii) constituting obligations evidenced by bonds,
debentures, notes or similar instruments, or
(iii) upon which interest charges are customarily paid or
that was issued or assumed as full or partial payment for property
(other than trade credit that is incurred in the ordinary course of
business),
(c) amounts available to be drawn (assuming all conditions to
drawing have been met) under any outstanding letters of credit and any
unsatisfied reimbursement obligation in respect of any drawing under any letter
of credit and net obligations of such Person in respect of Interest Rate
Agreements (the amount of any such obligations to be equal at any time to the
termination value of such Interest Rate Agreement giving rise to such
obligation that would be payable by such Person at such time),
(d) any amount (other than any wholly contingent liability, such
as an earn-out) required to be included in the purchase price of any Permitted
Acquisition and not paid in cash or by delivery of shares or other (non-cash)
property at the closing of such Acquisition,
(e) Capitalized Lease Obligations and Indebtedness attributed to
such Person arising out of any sale/leaseback transaction,
(f) obligations in respect of any mandatorily redeemable
preferred capital stock issued by such Person, and
(g) Guarantees of Debt.
"Default" means any of the events specified in SECTION 13.1 which with
the passage of time or giving of notice or both would constitute an Event of
Default.
"Default Margin" means 2.0% per annum.
"Deposit Accounts" has the meaning set forth in the definition
"Collateral".
"Designated Account Debtor" means each Account Debtor listed from time
to time with the consent of the Administrative Agent on SCHEDULE 1.1D -
DESIGNATED ACCOUNT DEBTORS.
10
"DeSoto ▇▇▇▇▇ Pledge Agreement" means the Stock Pledge Agreement dated
on or about the Effective Date made by DeSoto ▇▇▇▇▇, Inc. in favor the
Administrative Agent, with respect to the pledge to the Administrative Agent of
Equity Interests of ▇▇▇▇▇▇▇ Asset Management, Inc.
"Dilution Reserve" means an amount equal to the EXCESS of (i) non-cash
reductions to the Borrowers' accounts receivable (on a combined basis) during
the 12-month period prior to the date of determination as established by the
Borrowers' records or by a field examination conducted by the Administrative
Agent's employees or representatives, expressed as a percentage of gross
reductions (cash and non-cash) to the Borrowers' accounts receivable (on a
combined basis) for the same period OVER (ii) 6%, MULTIPLIED by an amount equal
to Eligible Accounts as of the date of determination, as the same may be
adjusted by the Administrative Agent in accordance with SECTION 5.9(c)(ii).
"Disbursement Account" means one or more accounts maintained by and in
the name of the Borrowers (or any of them) for the purposes of disbursing Loan
proceeds.
"Disbursing Bank" means any commercial bank with which a Disbursement
Account is maintained after the Effective Date.
"Dollar" and "$" means freely transferable United States dollars.
"EBITDA" for any Person for a specified accounting period means Net
Income of such Person and, if applicable, its consolidated Subsidiaries on a
consolidated basis for such period, plus interest expense, income tax expense,
depreciation expense, amortization expense, charges in respect of impairment of
goodwill, and up to $25,000,000 per year of other non-cash restructuring
charges (on a cumulative basis commencing January 1, 2002 to the date of
determination), each to the extent deducted in computing Net Income for such
specified period, after giving effect to any Permitted Pro Forma Adjustments.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Event" means (a) a "reportable event" as defined in Section
4043(c) of ERISA, but excluding any such event as to which the provision for 30
days' notice to the PBGC is waived under applicable regulations or that could
not reasonably be expected to result in the imposition of a Lien in favor of
the PBGC, (b) the filing of a notice of intent to terminate a Benefit Plan
subject to Title IV of ERISA under a distress termination under Section 4041(c)
of ERISA or the treatment of an amendment to such a Benefit Plan as a
termination under Section 4041(c) of ERISA, (c) the institution of proceedings
by the PBGC to terminate a Benefit Plan subject to Title IV of ERISA or the
appointment of a trustee to administer any such Benefit Plan or an event or
condition that might reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan subject to Section 4042, (d) the imposition of any
material liability under Title IV of ERISA other than for PBGC premiums due but
not yet payable, (e) the filing of an application for a minimum funding waiver
under Section 412 of the Code, (f) a withdrawal by the Borrower or any Related
Company from a Benefit Plan subject to Section 4063 of ERISA during a plan year
in which it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, (g) a
11
Benefit Plan intending to qualify under Section 401(a) of the Code losing such
qualified status (other than because of a Remediable Defect), (h) the failure
to make a material required contribution to a Benefit Plan, (i) the Borrower or
any Related Company being in "default" (as defined in Section 4219(c)(5) of
ERISA) with respect to payments to a Multiemployer Plan because of its complete
or partial withdrawal (as described in Section 4203 or 4205 of ERISA) from such
Multiemployer Plan, or (j) the occurrence of a non-exempt prohibited
transaction within the meaning of Section 4975 of the Code or Section 406 of
ERISA with respect to any Benefit Plan.
"Effective Date" means the later of:
(a) the Agreement Date, and
(b) the first date on which all of the conditions set forth in
ARTICLE 6 shall have been fulfilled.
"Effective Interest Rate" means each rate of interest per annum on the
Revolving Credit Loans, the Swingline Loans and the Term Loans in effect from
time to time pursuant to the provisions of SECTIONS 5.1(a), (b) or (c).
"Eligible Account" means an Account of a Borrower that consists of the
unpaid portion of the obligation stated on the invoice issued to an Account
Debtor with respect to Inventory sold and shipped to or services performed for
such Account Debtor in the ordinary course of business, net of any credits or
rebates owed by such Borrower to the Account Debtor and that meets all of the
following requirements:
(a) such Account is owned by a Borrower and represents a complete
bona fide transaction which requires no further act under any circumstances on
the part of such Borrower to make such Account payable by the Account Debtor;
(b) such Account (i) is not unpaid more than 90 days after its
invoice date or more than 60 days after due date or (ii) is not unpaid more
than 210 days after invoice date or more than 30 days after due date and when
added to all other Accounts determined to be Eligible Accounts by reason of
this CLAUSE (b)(ii) does not exceed $65,000,000 in the aggregate;
(c) such Account does not arise out of any transaction with any
Subsidiary, Affiliate, director, officer, agent, stockholder or employee of
such Subsidiary or Affiliate of a Borrower or with any creditor, lessor or
supplier of a Borrower;
(d) such Account is not owing by an Account Debtor more than 50%
of whose then-existing accounts owing to the Borrowers do not meet the
requirements set forth in CLAUSE (b) above;
(e) if the Account Debtor with respect thereto is located outside
of the United States of America, Canada or Puerto Rico, the goods which gave
rise to such Account were shipped after receipt by a Borrower from the Account
Debtor of an irrevocable letter of credit that has been confirmed by a
financial institution that meets the requirements set forth in SUBSECTION (c)
of the definition "Cash Equivalents" or is otherwise acceptable to the
Administrative Agent in its
12
reasonable credit judgment and is in form and substance acceptable to the
Administrative Agent, payable in the full amount of the face value of the
Account in Dollars at a place of payment located within the United States;
(f) the Account Debtor with respect to such Account is not
located in a state which imposes conditions on the enforceability of Accounts,
with which such Borrower has not complied;
(g) such Account is not subject to the Assignment of Claims Act
of 1940, as amended from time to time, or any Applicable Law now or hereafter
existing similar in effect thereto, as determined in the reasonable discretion
of the Administrative Agent, or to any provision prohibiting its assignment or
requiring notice of or consent to such assignment, unless all such required
notices have been given and such consents received such that such Account has
been validly assigned to the Administrative Agent;
(h) a Borrower is not in breach of any express or implied
representation or warranty with respect to the goods the sale of which gave
rise to such Account;
(i) the Account Debtor with respect to such Account (other than
any Designated Account Debtor) is not insolvent or the subject of any
bankruptcy or insolvency proceedings of any kind or of any other proceeding or
action, threatened or pending, which might, in the Administrative Agent's
reasonable judgment, have a materially adverse effect on such Account Debtor;
(j) the goods, the sale of which gave rise to such Account, were
shipped or delivered to the Account Debtor on an absolute sale basis and not on
a ▇▇▇▇-and-hold sale basis, a consignment sale basis, a guaranteed sale basis,
a sale or return basis or on the basis of any other similar understanding, and
such goods have not been returned or rejected;
(k) such Account is not owing by an Account Debtor or a group of
Account Debtors who are Affiliates whose then-existing accounts owing to the
Borrowers exceed in face amount 10% (or, as to any Designated Account Debtor,
the percentage set forth on SCHEDULE 1.1D - DESIGNATED ACCOUNT DEBTORS) of the
Borrowers' total Eligible Accounts;
(l) such Account is evidenced by an invoice or other
documentation issued in the name of the applicable Borrower and containing
payment instructions consistent with the terms of this Agreement;
(m) such Account is a valid, legally enforceable obligation of
the Account Debtor with respect thereto and is not subject to any present, or
contingent (and no facts exist which are the basis for any future), offset,
deduction or counterclaim, dispute or other defense on the part of such Account
Debtor, provided only an amount equal to the amount of such offset, deduction,
counterclaim dispute or other defense shall be ineligible by reason thereof;
(n) such Account is not evidenced by chattel paper or an
instrument of any kind unless such chattel paper or instrument is in the
possession of the Administrative Agent;
13
(o) such Account does not arise from the performance of warranty
services or out of account service charges by a Borrower or other fees for the
time value of money;
(p) such Account is subject to the Security Interest, which is
perfected as to such Account, and is subject to no other Lien whatsoever other
than Permitted Liens arising by operation of law and the goods giving rise to
such Account were not, at the time of the sale thereof, subject to any Lien
other than the Security Interest or other Permitted Liens arising by operation
of law; and
(q) such Account is not determined by the Administrative Agent in
the exercise of its reasonable credit judgment to be ineligible for any other
reason.
"Eligible Amounts Due From Factor" means the net amount payable from
time to time to the Borrowers by factors to which accounts receivable which
would be Eligible Accounts but for the fact that they remain unpaid beyond the
limits specified in the definition "Eligible Accounts," have been sold or
transferred in accordance with the provisions of SECTION 12.7(e), to the extent
that such factors (x) have assumed the risk of loss resulting from an Account
Debtor's failure to pay such accounts receivable at maturity because of its
financial inability and (y) otherwise have no rights of offset against
collections not approved by the Administrative Agent.
"Eligible Assignee" means any Lender and any financial institution,
fund, insurance company, trust or other Person that has as one of its
businesses, making or investing in commercial loans.
"Eligible Inventory" means items of Inventory of a Borrower held for
sale in the ordinary course of business of such Borrower which meet all of the
following requirements:
(a) such Inventory is owned by a Borrower, is subject to the
Security Interest, which is perfected as to such Inventory, and is subject to
no other Lien whatsoever other than Permitted Liens arising by operation of
law;
(b) such Inventory consists of raw materials, finished goods or
work-in-process;
(c) such Inventory is in good condition and meets, in all
material respects, all standards applicable to such goods, their use or sale
imposed by any governmental agency, or department or division thereof, having
regulatory authority over such matters;
(d) such Inventory is currently either usable or saleable, at
prices approximating at least cost, in the normal course of the relevant
Borrower's business;
(e) such Inventory is not obsolete or repossessed or used goods
taken in trade or returned goods;
(f) such Inventory is located within the United States and is at
one of the locations listed in SCHEDULE 7.1(u) - PART A or is in transit in the
United States to such a location (PROVIDED that the value of such in transit
Inventory, when added to the value of all Inventory in transit in the United
States to such a location at such time, does not exceed $15,000,000 in the
aggregate) or is located in Puerto Rico at one of the locations listed in
SCHEDULE 7.1(u) - PART B;
14
(g) such Inventory was not produced in violation of the Fair
Labor Standards Act and subject to the so called "hot goods" provisions
contained in Title 29, Chapter 8, U.S.C. ss. 215(a);
(h) such Inventory is in the possession and control of a Borrower
or is held by a third party bailee or processor and not any other third party
and (A) if located in a warehouse or other facility leased by a Borrower, or
(B) so held by a third party bailee or processor, the warehouseman, lessor,
bailee or processor has delivered to the Administrative Agent a lien waiver or
subordination in such form as may be reasonably requested by the Administrative
Agent;
(i) such Inventory is not subject to any license agreement with
any third party prohibiting or restricting in a manner materially adverse to
the interests of the Administrative Agent and the Lenders, its sale, transfer
or disposition by the Administrative Agent or any Lender upon default by the
Borrowers hereunder or, if such Inventory is subject to such an agreement, a
Licensor Agreement has been executed and delivered by the applicable licensor;
and.
(j) such Inventory is not determined by the Administrative Agent
in its reasonable credit judgment to be ineligible for any other reason.
"Environmental Compliance Reserve" means any reserve for the cost of
Remedial Action by a Borrower determined by the Administrative Agent from time
to time in its reasonable discretion based upon the reports delivered pursuant
to SECTION 10.9(b) and such other advice, analysis and engineering studies as
it deems appropriate.
"Environmental Laws" means all federal, state, local and foreign laws
from time to time in effect relating to pollution or protection of the
environment, including laws relating to emissions, discharges, Releases or
threatened Releases of pollutants, Contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment (including,
without limitation, ambient air, surface water, ground water, or land), or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, removal, transport, or handling of pollutants,
Contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes, and any and all regulations, notices or demand letters issued, entered,
promulgated or approved thereunder; such laws and regulations include but are
not limited to the Resource Conservation and Recovery Act, 42 ▇.▇.▇.▇▇. 6901 et
seq., as amended; the Comprehensive Environmental Response, Compensation and
Liability Act, 42 ▇.▇.▇.▇▇. 9601 et seq., as amended; the Toxic Substances
Control Act, 15 ▇.▇.▇.▇▇. 2601 et seq., as amended; the Clean Air Act, 46
▇.▇.▇.▇▇. 7401 et seq., as amended; and state and federal lien and
environmental cleanup programs.
"Environmental Lien" means a Lien in favor of any governmental entity
for (a) any liability under Environmental Laws or (b) damages arising from, or
costs incurred by such governmental entity in response to, a Release or
threatened Release of Contaminant into the environment.
"Equipment" has the meaning set forth in the definition "Collateral".
15
"Equity Interests" means capital stock, member interests, limited
partnership interests or any other right to participate in the governance and
profits of a Person that is not Debt or subject to redemption at the option of
the holder.
"Event of Default" means any of the events specified in SECTION 13.1,
PROVIDED that any requirement for notice or lapse of time or any other
condition has been satisfied.
"Excess Cash Flow" means, for any specified accounting period, EBITDA
for such period, less the sum of (i) cash income taxes paid, (ii) Restricted
Distributions, (iii) Capital Expenditures (other than Financed Capex), (iv)
cash interest payments, (v) scheduled repayments of principal of outstanding
Debt actually paid and (vi) Previously Reserved Cash Payments made during the
same period, in each case determined in accordance with GAAP on a consolidated
basis for ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries,
where "Previously Reserved Cash Payment" means any payment made in cash during
any Fiscal Quarter in respect of any charge, expense, loss or similar item as
to which a reserve was established in the same or a prior Fiscal Quarter, to
the extent that the amount of such reserve was not deducted in computing Net
Income or Net Loss for such Fiscal Quarter (or any accounting period including
such Fiscal Quarter).
"FCC" means Fleet Capital Corporation, a Rhode Island corporation.
"FSI" means Fleet Securities, Inc., a New York corporation.
"Facility" means each of the Revolving Credit Facility, the Swingline
Facility, and the Term Loan Facility.
"Facility Percentage" means as to any Lender at the time of
determination, the percentage obtained by dividing such Lender's Commitment
with respect to a specified Facility or, if the Commitments under such Facility
have terminated, such Lender's Loans outstanding under a specified Facility, by
the aggregate Commitments or Loans under the same Facility at such time.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve system arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by Bank from three federal funds brokers of
recognized standing selected by Bank.
"Financed Capex" means Capital Expenditures funded with the proceeds
of permitted Debt (other than Loans) or up to $10,000,000 of insurance proceeds
in respect of any casualty applied to replace damaged or destroyed property in
respect of which such proceeds were paid.
"Financial Officer" means the Chief Financial Officer, Treasurer or
Controller of ▇▇▇▇▇▇▇.
"Financing Statements" means any and all UCC financing statements that
the Administrative Agent is authorized to file, in form and substance
satisfactory to the
16
Administrative Agent, naming the Administrative Agent, for the benefit of the
Lenders, as secured party or assignee and a Loan Party as debtor, in connection
with this Agreement or any Security Document.
"Fiscal Quarter" means each of four consecutive periods of 13 (or 14)
consecutive weeks, beginning on the first day of each Fiscal Year.
"Fiscal Year" means each period of 52 (or 53) consecutive weeks of
▇▇▇▇▇▇▇ beginning on the day after the last day of the preceding Fiscal Year
and ending on the Saturday closest to December 31 and when preceded or followed
by the designation of a calendar year means the fiscal year of ▇▇▇▇▇▇▇ ending
on the Saturday closest to December 31 of such designated calendar year.
"Fixed Charge Coverage Ratio" means, for any specified accounting
period, the ratio of EBITDA of ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries for
such period, less the sum of cash income taxes paid, Restricted Payments,
Restricted Distributions, Capital Expenditures (other than Financed Capex) and
Previously Reserved Cash Payments made, on a consolidated basis by ▇▇▇▇▇▇▇ and
its Consolidated Subsidiaries during such period, to the sum of (i) interest
expense for such period plus (ii) current maturities of long-term Debt as of
the date of determination, in each case determined in accordance with GAAP on a
consolidated basis for ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries; PROVIDED,
that for any specified accounting period of less than four consecutive Fiscal
Quarters, current maturities of long-term Debt as of the date of determination
shall be multiplied by a fraction, the numerator of which is the number of
Fiscal Quarters included in such specified accounting period and the
denominator of which is four.
"Foreign Lender" means any Lender that is not a "U.S. Person" as
defined in Section 7701(a)(3) of the Code.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
a jurisdiction outside of the United States of America.
"Foreign Subsidiary Debt Limit" means as of the date of determination,
an amount equal to the sum, without duplication, of (1) 75% of the net book
value of the accounts receivable of Foreign Subsidiaries of ▇▇▇▇▇▇▇ at such
date and (2) 40% of the net book value of the inventories of Foreign
Subsidiaries of ▇▇▇▇▇▇▇ at such date. Net book value shall be determined in
accordance with GAAP and as reflected on the most recent available balance
sheet (it being understood that accounts receivable and inventories of an
acquired business may be included if such acquisition has been completed on or
prior to the date of determination).
"Funded Debt" means, at any time, the aggregate outstanding principal
amount of all Debt of ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries, on a
consolidated basis, at such time.
"GAAP" means generally accepted accounting principles consistently
applied and maintained throughout the period indicated and, when used with
reference to ▇▇▇▇▇▇▇, the Borrowers or any Subsidiary, consistent with the
prior financial practice of ▇▇▇▇▇▇▇, as reflected in the financial statements
referred to in SECTION 7.1(n); PROVIDED, HOWEVER, that, in the event that
changes shall be mandated by the Financial Accounting Standards Board or any
similar accounting authority of comparable standing, or shall be recommended by
the Borrowers'
17
independent public accountants, such changes shall be included in GAAP as
applicable to the Borrowers only from and after such date as the Borrowers, the
Required Lenders and the Administrative Agent shall have amended this Agreement
to the extent necessary to reflect any such changes to the financial covenants
set forth in ARTICLE 12 necessary to maintain comparability after going effect
to such change.
"General Intangibles" has the meaning set forth in the definition
"Collateral".
"Government Acts" has the meaning set forth in SECTION 3.8(a)(ii).
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all governmental bodies, whether federal, state, local or foreign
national or provincial and all agencies thereof.
"Guarantor" means each Subsidiary listed as such on ANNEX C and any
other Person that guarantees the Secured Obligations, including any Subsidiary
that becomes a Guarantor in accordance with SECTION 10.10.
"Guarantor Security Agreement" means a security agreement in
substantially the form of EXHIBIT I hereto or in such other form as may be
satisfactory to the Administrative Agent, executed by a Guarantor in favor of
the Administrative Agent.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any
obligation of another Person shall mean and include
(a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation of such other
Person, and
(b) an agreement, direct or indirect, contingent or otherwise,
and whether or not constituting a guaranty, the practical effect of which is to
assure the payment or performance (or payment of damages in the event of
nonperformance) of any part or all of such obligation of such other Person
whether by
(i) the purchase of securities or obligations,
(ii) the purchase, sale or lease (as lessee or lessor) of
property or the purchase or sale of services primarily for the purpose
of enabling the obligor with respect to such obligation to make any
payment or performance (or payment of damages in the event of
nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner
investing in the obligor with respect to such obligation,
(iv) repayment of amounts drawn down by beneficiaries of
letters of credit, or
18
(v) the supplying of funds to or investing in a Person
on account of all or any part of such Person's obligation under a
Guaranty of any obligation or indemnifying or holding harmless, in any
way, such Person against any part or all of such obligation.
"Guaranty Agreement" means an agreement of Guaranty, substantially in
the form of EXHIBIT H hereto or in such other form as may be satisfactory to
the Administrative Agent, executed by a Guarantor in favor of the
Administrative Agent.
"Indebtedness" of any Person means, without duplication, all items
(except for items of capital stock, additional paid-in capital or retained
earnings, or of general contingency or deferred tax reserves) which in
accordance with GAAP would be included in determining total liabilities as
shown on the liability side of a balance sheet of such Person as at the date as
of which liabilities are to be determined and to the extent not otherwise
included in the foregoing, the following:
(a) all obligations for money borrowed or for the deferred
purchase price of property or services or in respect of drafts accepted or
similar instruments or reimbursement obligations under letters of credit,
(b) all obligations (including, during the noncancellable term of
any lease in the nature of a title retention agreement, all future payment
obligations under such lease discounted to their present value in accordance
with GAAP) secured by any Lien to which any property or asset owned or held by
such Person is subject, whether or not the obligation secured thereby shall
have been assumed by such Person,
(c) all obligations of other Persons which such Person has
Guaranteed, including, but not limited to, all obligations of such Person
consisting of recourse liability with respect to accounts receivable sold or
otherwise disposed of by such Person, and
(d) in the case of the Loan Parties (without duplication) all
Secured Obligations and all obligations in respect of the Senior Notes.
"Initial Loans" means the Revolving Credit Loans and the Term Loans
made to the Borrowers on the Effective Date pursuant to the Initial Notice of
Borrowing.
"Initial Notice of Borrowing" means the Notice of Borrowing given by
the Borrowers pursuant to SECTION 6.1(c)(18), which shall also specify the
method of disbursement.
"Installment Payment Date" means as applied to the Term Loan, each
September 30 and December 31, commencing September 30, 2002.
"Intellectual Property" means all of the Loan Parties' now owned and
hereafter arising or acquired: Patents, Copyrights and Trademarks, including,
without limitation, the Intellectual Property set forth on SCHEDULE 7.1(x)
hereto.
"Interest Period" means with respect to each LIBOR Loan, the period
commencing on the date of the making or continuation of or conversion to such
LIBOR Loan and ending one, two,
19
three or six months thereafter, as the Borrowers may elect in the applicable
Notice of Borrowing or Notice of Conversion or Continuation; PROVIDED, that:
(i) any Interest Period that would otherwise end on a
day that is not a Business Day shall, subject to the provisions of
CLAUSE (iii) below, be extended to the next succeeding Business Day
unless such Business Day falls in the next calendar month, in which
case such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to CLAUSE (iii) below, end on the last Business
Day of a calendar month;
(iii) any Interest Period that would otherwise end after
the Termination Date shall end on the Termination Date;
(iv) no Interest Period applicable to a LIBOR Term Loan
may end after the next applicable Installment Payment Date, unless the
aggregate principal amount of Base Rate Term Loans and LIBOR Term
Loans having Interest Periods ending prior to such applicable
Installment Payment Date is at least equal to the amount of the
principal repayment due hereunder on such Installment Payment Date;
and
(v) notwithstanding CLAUSE (iii) above, no Interest
Period shall have a duration of less than one month and if any
applicable Interest Period would be for a shorter period, such
Interest Period shall not be available hereunder.
"Interest Rate Agreement" means any interest rate agreement, interest
rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement or other similar agreement or arrangement between
any Borrower and a Lender or an Affiliate of a Lender.
"Inventory" has the meaning set forth in the definition "Collateral".
"Investment" means, with respect to any Person:
(a) the acquisition or ownership by such Person of any share of
capital stock, membership interest, partnership interest, evidence of
Indebtedness or other security or equity interest issued by any other Person,
(b) any loan, advance or extension of credit to, or contribution
to the capital of, any other Person, excluding advances to employees in the
ordinary course of business for business expenses,
(c) any Guaranty of the obligations of any other Person,
(d) any other investment (other than the Acquisition of a
Business Unit) in any other Person, and
20
(e) any commitment or option to make any of the investments
listed in CLAUSES (a) through (d) above if, in the case of an option, the
consideration therefor exceeds $100.
"Investment Account" has the meaning set forth in the definition
"Collateral".
"Investment Property" has the meaning set forth in the definition
"Collateral".
"IRS" means the Internal Revenue Service.
"Issuing Bank" means Bank or another Lender acceptable to the
Administrative Agent in its reasonable judgment.
"L/C Inventory Amount" means at any time, the lesser of (a) the sum of
50% as to raw materials and 60% as to finished goods and (b) 85% of the
Appraised Value of raw materials and finished goods, as applicable, of the
Letter of Credit Amounts of outstanding documentary Letters of Credit opened
for the benefit of vendors to the Loan Parties of goods which, when delivered
to a Loan Party, will constitute Inventory of such type of such Loan Party.
"Lender" means at any time any Person party to this Agreement at such
time as a "Lender", including any such Person becoming a party hereto pursuant
to the provisions of ARTICLE 14.
"Letter of Credit" means (i) any letter of credit issued by Wachovia
Bank, National Association for the account of a Borrower, outstanding on the
Effective Date, Guaranteed by FCC pursuant to ARTICLE 3 and listed on ANNEX D
and (ii) any Letter of Credit issued by the Issuing Bank for the account of a
Loan Party and Guaranteed by FCC pursuant to ARTICLE 3.
"Letter of Credit Amount" with respect to any Letter of Credit
Guarantee, means the aggregate maximum amount at any time available for drawing
under the Guaranteed Letter of Credit at such time (assuming all conditions to
drawing are satisfied).
"Letter of Credit Availability" means, as of the date of
determination, the aggregate face amount of Letter of Credit Obligations
available to be incurred hereunder at the time of determination in accordance
with SECTION 3.2, which shall be an amount equal to the lesser of (i) the
Letter of Credit Guarantee Facility minus the Letter of Credit Obligations and
(ii) Availability, on such date.
"Letter of Credit Guarantee" means any Guarantee pursuant to which FCC
or any of its Affiliates Guarantees to the Issuing Bank, the payment or
performance by a Borrower of its Reimbursement Obligations under any Letter of
Credit, including by FCC's (or such Affiliate's) joining in the Reimbursement
Agreement for such Letter of Credit as a co-applicant or otherwise as
acceptable to the Issuing Bank.
"Letter of Credit Guarantee Facility" means a subfacility of the
Revolving Credit Facility providing for the issuance of Letters of Credit and
Letter of Credit Guarantees as described in ARTICLE 3 up to an aggregate amount
of Letter of Credit Obligations at any one time outstanding not to exceed the
amount of $50,000,000.
21
"Letter of Credit Obligations" means, at any time, the sum of (a) the
Reimbursement Obligations of the Borrowers at such time, plus (b) the aggregate
Letter of Credit Amount of Letter of Credit Guarantees outstanding at such
time, plus (c) the aggregate Letter of Credit Amount of Letter of Credit
Guarantees the issuance of which has been authorized by the Administrative
Agent, FCC and the Issuing Bank pursuant to SECTION 3.4(b) but that have not
yet been issued, in each case as determined by the Administrative Agent.
"Letter of Credit Reserve" means, at any time, the aggregate Letter of
Credit Obligations at such time, other than Letter of Credit Obligations that
are fully secured by Cash Collateral.
"Leverage Ratio" as of any specified date, means the ratio of (i)
Funded Debt as of such date to (ii) the sum of EBITDA of ▇▇▇▇▇▇▇ and its
Consolidated Subsidiaries for the specified accounting period ending on such
date, PLUS, $53,769,000 and $61,024,000 in respect of the third and fourth
Fiscal Quarters, respectively, of Fiscal Year 2001.
"LIBOR" means for any LIBOR Loan, the rate per annum (rounded upward,
if necessary to the nearest 1/32 of one percent) as determined on the basis of
the offered rates for deposits in Dollars, for a period comparable to the
Interest Period for such LIBOR Loan which appears on the Telerate page 3750 as
of 11:00 a.m. (London time) on the day that is three Business Days preceding
the first day of the Interest Period for such LIBOR Loan divided by an amount
equal to one minus the Reserve Percentage; PROVIDED, HOWEVER, if the rate
described above does not appear on the Telerate System on any applicable
interest determination date, LIBOR shall be the rate (rounded upwards as
described above, if necessary) for deposits in Dollars for a period
substantially equal to the Interest Period for such LIBOR Loan appearing on the
Reuters Page "LIBO" (or such other page as may replace the LIBO Page on that
service for the purpose of displaying such rates), as of 11:00 a.m. (London
time), on the day that is three Business Days prior to the beginning of such
Interest Period divided by an amount equal to one minus the Reserve Percentage.
If both the Telerate and Reuters systems are unavailable, then the rate for
that date will be determined on the basis of the offered rates for deposits in
Dollars for a period comparable to the Interest Period for such LIBOR Loan
which are offered by four major banks in the London interbank market at
approximately 11:00 a.m. (London time), on the day that is three Business Days
preceding the first day of the Interest Period for such LIBOR Loan, as selected
by the Administrative Agent. The principal London office of each of the major
London Banks so selected will be requested to provide a quotation of its Dollar
deposit offered rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations divided by an
amount equal to one minus the Reserve Percentage. If fewer than two quotations
are provided as requested, the rate for that date will be determined on the
basis of the rates quoted for loans in Dollars to leading European banks for a
period comparable to the Interest Period for such LIBOR Loan offered by major
banks in New York City at approximately 11:00 a.m. (New York City time), on the
day that is two Business Days preceding the first day of the Interest Period
for such LIBOR Loan divided by an amount equal to one minus the Reserve
Percentage. In the event that Lender is unable to obtain any such quotation as
provided above, it will be determined that LIBOR for such LIBOR Loan cannot be
determined.
"LIBOR Loan" means any Loan (other than a Swingline Loan) bearing
interest at a rate determined with reference to LIBOR, including any such Loans
continued as or converted into a LIBOR Loan on the same day by the Lenders for
the same Interest Period.
22
"LIBOR Revolving Credit Loan" means a LIBOR Loan outstanding under the
Revolving Credit Facility.
"LIBOR Term Loan" means a LIBOR Loan outstanding under the Term Loan
Facility.
"Licensor Agreement" means an agreement of a licensor with respect to
the inclusion in Collateral and the disposition of Inventory of any Borrower
incorporating copyrighted designs, bearing a trademark or otherwise utilizing
Intellectual Property licensed by such licensor to such Borrower, in form and
substance satisfactory to the Administrative Agent in its sole discretion.
"Lien" as applied to the property of any Person means:
(a) any mortgage, deed to secure debt, deed of trust, lien,
pledge, charge, or lease constituting a Capitalized Lease Obligation other than
a lease resulting from a sale/leaseback transaction to which a Loan Party or
any Subsidiary is a party as seller/lessee,
(b) any arrangement, express or implied, under which any property
of such Person is transferred, sequestered or otherwise identified for the
purpose of subjecting the same to the payment of Indebtedness or performance of
any other obligation in priority to the payment of the general, unsecured
creditors of such Person,
(c) any Indebtedness which is unpaid more than 30 days after the
same shall have become due and payable and which if unpaid might by law
(including, but not limited to, bankruptcy and insolvency laws), or otherwise,
be given any priority whatsoever over the claims of general unsecured creditors
of such Person,
(d) the filing of, or any agreement to give, any financing
statement under the UCC or its equivalent in any jurisdiction, excluding
informational financing statements relating to property leased by ▇▇▇▇▇▇▇ or
any Subsidiary, and
(e) in the case of Real Estate, reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances.
"Loan" means any Revolving Credit Loan, Swingline Loan or Term Loan,
as well as all such loans collectively, as the context requires.
"Loan Account" and "Loan Accounts" have the meanings set forth in
SECTION 5.5.
"Loan Documents" means collectively this Agreement, the Notes, the
Security Documents and each other instrument, agreement or document executed by
a Borrower, a Guarantor or any Affiliate or Subsidiary of a Borrower or a
Guarantor in connection with this Agreement whether prior to, on or after the
Effective Date and each other instrument, certificate, agreement or document
referred to herein or contemplated hereby.
"Loan Party" means each of the Borrowers and each Guarantor.
"Lockbox" means each U. S. Post Office Box specified in a Lockbox
Agreement.
23
"Lockbox Agreement" means each agreement between a Borrower and a
Clearing Bank concerning the establishment of a Lockbox for the collection of
Accounts.
"Margin Adjustment Date" has the meaning set forth in the definition
"Applicable Margin."
"Materially Adverse Effect" means any act, omission, situation,
circumstance, event or undertaking which could reasonably be expected to have,
singly or in any combination with one or more other acts, omissions,
situations, circumstances, events or undertakings, a materially adverse effect
upon (a) the business, assets, properties, liabilities, condition (financial or
otherwise), results of operations or business prospects of ▇▇▇▇▇▇▇ and its
Subsidiaries taken as a whole, (b) the value of the whole or any material part
of the Collateral, or the enforceability or priority of the Security Interest,
(c) the respective abilities of the Borrowers to perform all material
obligations under this Agreement or any other Loan Document to which they are
parties, or (d) the legality, validity, binding effect, enforceability or
admissibility into evidence of any Loan Document or the rights or remedies of
the Administrative Agent or the Lenders under or in connection with any Loan
Document.
"Maximum Rate" has the meaning set forth in SECTION 5.1(f).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means each mortgage, deed of trust, deed to secure debt or
other instrument creating or purporting to create a Lien on Real Estate as
security for the Secured Obligations or any part thereof.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which a Borrower or a Related Company is
required to contribute or has contributed within the immediately preceding six
years.
"Net Amount" means, with respect to any Investments made by any
Person, the gross amount of all such Investments minus the aggregate amount of
all cash received and the fair value, at the time of receipt by such Person, of
all property received as payments of principal or premiums, returns of capital,
liquidating dividends or distributions, proceeds of sale or other dispositions
with respect to such Investments.
"Net Income" or "Net Loss" means, as applied to any Person (not on a
consolidated basis) for any accounting period, the net income or net loss, as
the case may be, of such Person for the period in question determined in
accordance with GAAP, provided that there shall be excluded:
(a) the net income or net loss of any Person accrued prior to the
date it becomes a Subsidiary of, or is merged into or consolidated with, the
Person whose Net Income is being determined or a Subsidiary of such Person,
except to the extent it constitutes Permitted Pro Forma Adjustments,
(b) the net income or net loss of any Person in which the Person
whose Net Income is being determined or any Subsidiary of such Person has an
ownership interest, except, in the case
24
of net income, to the extent that any such income has actually been received by
such Person or such Subsidiary in the form of cash dividends or similar
distributions,
(c) any restoration of any contingency reserve, except to the
extent that provision for such reserve was made out of income during any prior
period,
(d) any net gains or losses on the sale or other disposition, not
in the ordinary course of business, of Investments, Business Units and other
capital assets, provided that there shall also be excluded any related charges
for taxes thereon,
(e) any net gain arising from the collection of the proceeds of
any insurance policy,
(f) any write-up of any asset, and
(g) any other extraordinary item.
"Net Proceeds" means proceeds received by a Borrower or any of its
Subsidiaries in cash from any Asset Disposition (including, without limitation,
payments received under notes or other debt securities accepted by such
Borrower or Subsidiary in connection with such Asset Disposition), net of: (a)
the transaction costs of such sale, lease, transfer or other disposition; (b)
any tax liability arising from such transaction; and (c) amounts applied to
repayment of Indebtedness (other than the Secured Obligations) secured by a
Lien on the asset or property disposed of.
"Note" means any of the Revolving Credit Notes, the Swingline Note and
the Term Notes and "Notes" means more than one such Note.
"Notice of Borrowing" means a written notice (including by electronic
mail, but subject to any Bank requirements applicable from time to time of
which ▇▇▇▇▇▇▇ has received notice), or telephonic notice followed by a
confirming same-day written notice, requesting a Borrowing of (i) Base Rate
Revolving Credit Loans or LIBOR Revolving Credit Loans or (ii) a Swingline
Loan, which is given by telex or facsimile transmission in accordance with the
applicable provisions of SECTION 2.2 or SECTION 2A.2, as the case may be, and
which specifies (i) the amount of the requested Borrowing, (ii) the date of the
requested Borrowing, and (iii) if the requested Borrowing is of LIBOR Loans,
the duration of the applicable Interest Period.
"Notice of Conversion or Continuation" has the meaning specified in
SECTION 5.3.
"Overadvance" means at any time the amount by which the principal
amount of Revolving Credit Loans and Swingline Loans outstanding at such time
exceeds the Borrowing Base.
"Overadvance Condition" means and is deemed to exist any time the
principal amount of Revolving Credit Loans and Swingline Loans outstanding
exceeds the Borrowing Base.
"Overadvance Loan" means a Revolving Credit Loan made at a time an
Overadvance Condition exists or which results in an Overadvance Condition.
25
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor agency.
"Patent Security Agreement" means each Security Agreement (Patents)
made by a Loan Party to the Administrative Agent.
"Patents" means and includes, in each case whether now existing or
hereafter arising or acquired, all of the Loan Parties' right, title and
interest in and to
(i) any and all patents and patent applications,
(ii) any improvements described and claimed therein,
(iii) reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof,
(iv) income, royalties, damages, claims and payments now
or hereafter due and/or payable under and with respect thereto,
including, without limitation, damages and payments for past and
future infringements thereof,
(v) rights to ▇▇▇ for past, present and future
infringements thereof, and
(vi) all rights corresponding to any of the foregoing
throughout the world.
"Pending Loan" has the meaning specified in SECTION 5.15(b).
"Permitted Acquisition" means an Acquisition by a Loan Party of Equity
Interests in or the assets of another Person, in an arm's length transaction
and in accordance with the provisions of SECTION 12.4(b).
"Permitted Investments" means Investments of any Loan Party or
Subsidiary in:
(a) Cash Equivalents in an aggregate amount not to exceed
$7,500,000,
(b) sales of inventory on credit in the ordinary course of
business,
(c) in any Loan Party (including any Permitted Acquisition that
involves an Investment in Equity Interests of a Person that thereby becomes a
Loan Party),
(d) any Subsidiary that is not a Loan Party to the extent that
such Investment is outstanding on the Effective Date,
(e) shares of capital stock, evidence of Indebtedness or other
security acquired in consideration for or as evidence of past-due or
restructured Accounts,
(f) non-cash consideration received in connection with any Asset
Disposition otherwise permitted hereby,
(g) Guaranties permitted pursuant to SECTION 12.3,
26
(h) those items described on SCHEDULE 1.1B - PERMITTED
INVESTMENTS, and
(i) loans and advances (i) to officers, directors and employees
of any Loan Party or its Subsidiaries in the ordinary course of business or
(ii) to officers, directors and employees and to independent sales
representatives of any Loan Party or its Subsidiaries secured by the pledge of
shares of ▇▇▇▇▇▇▇ capital stock made to finance the purchase by such officers,
directors, officers, directors, employees or representatives of such stock or
made to finance tax liabilities of any such Person resulting from the exercise
of stock options or the sale of capital stock of ▇▇▇▇▇▇▇ by such Person, in
each case consistent with past practices of such Loan Party or Subsidiary and
consistent with Applicable Law.
"Permitted Liens" means:
(a) Liens securing taxes, assessments and other governmental
charges or levies (excluding any Lien imposed pursuant to any of the provisions
of ERISA) or the claims of materialmen, repairmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, but in all cases only if payment shall not at
the time be required to be made in accordance with SECTION 10.6,
(b) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
under payment or performance bonds,
(c) Liens to which the priority of any Mortgage is subject as
evidenced by the related mortgagee title insurance policy accepted by the
Administrative Agent or constituting encumbrances in the nature of zoning
restrictions, condemnations, easements, and rights or restrictions of record on
the use of real property, which do not materially detract from the value of
such property or materially impair the use thereof in the business of a
Borrower,
(d) Liens of or resulting from any judgment or award that would
not result in an Event of Default under SECTION 13.1(k), the time for appeal or
petition for rehearing of which shall not have expired, or in respect of which
a Borrower or the affected Subsidiary shall at any time in good faith be
prosecuting an appeal or proceeding for review and in respect of which a stay
of execution pending such appeal or proceeding for review is in effect,
(e) Purchase Money Liens securing Permitted Purchase Money Debt
and Liens securing Debt permitted pursuant to SECTION 12.2(k),
(f) short term leases of Real Estate to third parties that (i)
are subordinate to the Mortgage (if any) encumbering such Real Estate and (ii)
do not interfere with the lessor's conduct of business on such Real Estate,
(g) Liens shown on SCHEDULE 1.1C - PERMITTED LIENS and Liens
created in connection with any Qualifying Refinancing of Debt,
(h) Liens of the Administrative Agent, for the benefit of itself,
the Lenders and Affiliates of the Lenders, arising under this Agreement and the
other Loan Documents,
27
(i) Liens in existence immediately prior to the Effective Date
that are satisfied in full and released (or assigned to and accepted by the
Administrative Agent) on the Effective Date or promptly thereafter as a result
of the application of the proceeds of the Initial Loans or cash on hand,
(j) Liens in favor of a Loan Party securing Debt owing to such
Loan Party by ▇▇▇▇▇▇▇ or a Subsidiary to the extent such Liens are subordinated
to the Security Interest on terms acceptable to the Administrative Agent in its
reasonable credit judgment, and
(k) Liens on assets of Foreign Subsidiaries securing Debt
permitted by SECTION 12.2(j).
"Permitted Pro Forma Adjustments" as applied to any Person or Business
Unit Acquired after the Effective Date means, as of any date of determination,
the actual results of operations of such Person or Business Unit for the period
of 12 months ended nearest to the date of determination, as if such Person or
Business Unit had been Acquired (and any related Debt had been incurred) on the
first day of such 12-month period, as adjusted with the approval of the
Administrative Agent to reflect verifiable, adequately documented severance
payments and reductions in officer and employee compensation, insurance
expenses, interest expense and rental and other overhead expense that will be
or were realized effective upon completion of such Acquisition.
"Permitted Purchase Money Debt" means Purchase Money Debt of a
Borrower or a Subsidiary incurred after the Agreement Date
(a) which is secured by a Purchase Money Lien, and
(b) the aggregate principal amount of which does not exceed an
amount equal to 100% of the lesser of
(i) the cost (including the principal amount of such
Debt, whether or not assumed) of the tangible personal property (other
than Inventory) subject to such Lien, and
(ii) the fair value of such tangible personal property
(other than Inventory) at the time of its acquisition.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or unincorporated organization, or a government
or any agency or political subdivision thereof.
"Pledge Agreement" means each of the Cross Creek Pledge Agreement, the
Cross Creek Apparel Pledge Agreement, the DeSoto ▇▇▇▇▇ Pledge Agreement and the
▇▇▇▇▇▇▇ Pledge Agreement.
"Previously Reserved Cash Payment" has the meaning specified in the
definition "Excess Cash Flow."
28
"Projections" means the forecasted (a) consolidated balance sheets,
(b) consolidated income statements and (c) consolidated cash flow statements of
▇▇▇▇▇▇▇ and its Consolidated Subsidiaries for the Fiscal Years 2002 through
2006, prepared on a monthly basis for Fiscal Years 2002 and 2003, on a
quarterly basis for Fiscal Year 2004, and on an annual basis for each Fiscal
Year thereafter, delivered to the Administrative Agent and dated March 26,
2002, together with appropriate supporting detail and a statement of underlying
assumptions.
"Purchase Money Debt" means Debt created to finance the payment of all
or any part of the purchase price of any tangible personal property (other than
Inventory) or real property and incurred at the time of or within 60 days prior
to or after the acquisition of such tangible asset.
"Purchase Money Lien" means any Lien securing Purchase Money Debt, but
only if such Lien shall at all times be confined solely to the property (other
than Inventory) the purchase price of which was financed through the incurrence
of the Purchase Money Debt secured by such Lien.
"Qualifying Refinancing" means any extension, refinancing, renewal,
replacement or refunding (each a "refinancing") of any Debt incurred and
outstanding in compliance with subsections (a), (b), (c), (f), (j) or (k) of
SECTION 12.2; PROVIDED that as a result thereof, (i) the principal amount of
such Debt is not increased, (ii) no additional security is granted, (iii) the
interest rate payable on such Debt does not exceed the lesser of the rate
applicable immediately prior to such extension, refinancing, renewal,
replacement or refunding, and the market interest rate for Debt of such type
issued by an entity similar to ▇▇▇▇▇▇▇, (iv) the weighted average life to
maturity of such Debt is not shortened and (v) neither ▇▇▇▇▇▇▇ nor any
Subsidiaries become subject to financial covenants or other requirements that
are more restrictive or more onerous than the (analogous) provisions of the
agreement governing the Debt to be refinanced (or if no such agreement exists,
of this Agreement).
"Ratable Share" or "Ratable" (and with corollary meaning, "Ratably")
means, as to a Lender, such Lender's share of an amount in Dollars or other
property at the time of determination equal to (i) such Lender's Facility
Percentage in respect of a specified Facility, or (ii) if no Facility is
specified (x) the percentage obtained by dividing such Lender's Revolving
Credit Commitment by the total Revolving Credit Commitments of all Lenders, (y)
if the Commitments are terminated, the percentage of the total principal amount
of Loans outstanding at such time obtained by dividing the principal amount of
the Loans then owing to such Lender by the total principal amount of all Loans
then owing to all Lenders, or (z) if the Commitments are terminated and no
Loans are outstanding, the percentage of the total Letter of Credit Obligations
then outstanding obtained by dividing such Lender's participation, if any, in
such Letter of Credit Obligations by the total Letter of Credit Obligations
then outstanding.
"Real Estate" means all of the Loan Parties' now or hereafter owned or
leased estates in real property, including, without limitation, all fees,
leaseholds and future interests, together with all of the Loan Parties' now or
hereafter owned or leased interests in the improvements and emblements thereon,
the fixtures attached thereto and the easements appurtenant thereto, including,
without limitation the real property described on SCHEDULE 7.1(y).
"Register" has the meaning specified in SECTION 14.1(d).
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"Reimbursement Agreement" means, with respect to a Letter of Credit,
such form of application therefor and form of reimbursement agreement therefor
(whether in a single document or several documents) as the Issuing Bank may
employ in the ordinary course of business for its own account, with such
modifications thereto as may be agreed upon by the Issuing Bank, FCC and the
relevant Borrower, provided that such application and agreement and any
modifications thereto are not inconsistent with the terms of this Agreement.
"Reimbursement Obligations" means the unsatisfied reimbursement or
repayment obligations of the relevant Borrower to FCC pursuant to SECTION 3.6
or (but without duplication) to the Issuing Bank pursuant to a Reimbursement
Agreement with respect to amounts that have been drawn under Letters of Credit
Guaranteed by FCC.
"Related Company" means any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Code) as any Borrower; (ii) partnership or other trade or business (whether
or not incorporated) under common control (within the meaning of Section 414(c)
of the Code) with any Borrower; or (iii) member of the same affiliated service
group (within the meaning of Section 414(m) of the Code) as any Borrower, any
corporation described in CLAUSE (i) above or any partnership, trade or business
described in CLAUSE (ii) above.
"Release" means release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment or into or out of any property, including the movement
of Contaminants through or in the air, soil, surface water or groundwater.
"Remediable Defect" means an operational defect or violation that
could disqualify a Benefit Plan intended to qualify under Section 401(a) (and,
if applicable, Section 401(k)) of the Code and that can be remedied under the
IRS's Closing Agreement Program, Voluntary Compliance Resolution Program, or
Administrative Policy Regarding Self-Correction, without in any case a payment
to any governmental authority with respect to such Benefit Plan and any other
Benefit Plan of more than $500,000 in any calendar year.
"Remedial Action" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment; or
(iii) perform pre-remedial studies and investigations and post-remedial
monitoring and care.
"Required Lenders" means, at any time, any combination of two or more
Lenders whose combined Commitment Percentages at such time are greater than
51%.
"Reserve Percentage" applicable to any Interest Period means the rate
(expressed as a decimal) applicable to United States commercial banks during
such Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the maximum reserve
requirement (including, without limitation, any basic, supplemental, emergency
or marginal reserve requirement) of such banks with respect to "Eurocurrency
liabilities" as that term is defined under such regulations. Without limiting
the
30
effect of the foregoing, the Reserve Percentage shall include any other
reserves required to be maintained by such banks by reason of any regulatory
change with respect to (i) any category of liabilities that includes deposits
by reference to which LIBOR is to be determined as provided in the definition
or (ii) any category of extensions of credit or other assets that includes
LIBOR Loans.
"Restricted Distribution" by any Person means (i) the retirement,
redemption, purchase, or other acquisition or retirement for value of any
capital stock or other Equity Interests (except interests acquired on the
conversion thereof into other Equity Interests of such Person) issued by such
Person, (ii) the declaration or payment of any dividend or distribution in cash
or property on or with respect to any such Equity Interests (other than
dividends payable solely in shares of its capital stock or other Equity
Interests), EXCLUDING, HOWEVER, any such dividend, distribution or payment to
any Loan Party by any Subsidiary of such Loan Party, and (iii) any other
payment by such Person in respect of such Equity Interests.
"Restricted Payment" means (i) any redemption or prepayment or other
retirement (other than out of the proceeds of a Qualifying Refinancing), prior
to the stated maturity thereof or prior to the due date of any regularly
scheduled installment or amortization payment with respect thereto, of any Debt
(other than the Loans) or any payment of any Subordinated Debt other than in
accordance with the terms thereof and hereof, (ii) the payment by any Person of
the principal amount of or interest on any Indebtedness (other than trade debt)
owing to an Affiliate of such Person or to any Affiliate of any such Affiliate
(other than a Subsidiary) or to any Subsidiary that is not a Loan Party, (iii)
the repayment prior to the Termination Date of unsecured Debt in excess of
$2,000,000 incurred after the Agreement Date, and (iv) the payment of any
management, consulting or similar fee by any Person to any Affiliate of such
Person.
"Revolving Credit Facility" means the credit facility providing for
Revolving Credit Loans based upon the Borrowing Base and described in SECTION
2.1 up to an aggregate principal amount at any one time outstanding not to
exceed $300,000,000 or such lesser amount as shall be specified by ▇▇▇▇▇▇▇ in
accordance with SECTION 5.8.
"Revolving Credit Lender" means each Lender having a Commitment under
the Revolving Credit Facility or, if the Commitments are terminated, having
outstanding Revolving Credit Loans.
"Revolving Credit Loans" means Loans made to the Borrowers pursuant to
SECTION 2.1.
"Revolving Credit Note" means each Revolving Credit Note made by the
Borrowers payable to the order of a Lender evidencing the joint and several
obligation of the Borrowers to pay the aggregate unpaid principal amount of the
Loans made to them by such Lender under the Revolving Credit Facility (and any
promissory note or notes that may be issued from time to time in substitution,
renewal, extension, replacement or exchange therefor whether payable to such
Lender or to a different Lender in connection with a Person becoming a Lender
after the Effective Date or otherwise) substantially in the form of EXHIBIT A-1
hereto, with all blanks properly completed, either as originally executed or as
the same may from time to time be supplemented, modified, amended, renewed,
extended or refinanced.
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"Royalty Reserve" means, at any time, an amount equal to (i) 5% of the
Appraised Value of Eligible Inventory of Mossy Oak Apparel Company, plus (ii)
the aggregate amount of all accrued and unpaid royalties owing by the Loan
Parties at such time in respect of Intellectual Property licensed to them and
incorporated in the Eligible Inventory of one or more Loan Parties, as the same
may be adjusted by the Administrative Agent in accordance with SECTION
5.9(C)(II).
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ Corporation, an Alabama corporation.
"▇▇▇▇▇▇▇ Pledge Agreement" means the Stock Pledge Agreement dated on
or about the Effective Date between ▇▇▇▇▇▇▇ and the Administrative Agent,
pursuant to which ▇▇▇▇▇▇▇ pledges to the Administrative Agent all of the issued
and outstanding Equity Interests held by it of each Subsidiary (or as to
Foreign Subsidiaries, 65% of such Equity Interests) as security for its
obligations under this Agreement and the other Loan Documents.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies.
"Schedule of Accounts" means a schedule delivered by the Borrowers to
the Administrative Agent pursuant to the provisions of SECTION 9.11a.
"Schedule of Inventory" means a schedule delivered by the Borrowers to
the Administrative Agent pursuant to the provisions of SECTION 9.11b.
"Seasonal Increase" has the meaning specified in the definition
"Borrowing Base."
"Section 12.4 Investment" means an Investment permitted pursuant to
the provisions of SECTION 12.4(a)(ii).
"Secured Obligations" means, in each case whether now in existence or
hereafter arising,
(a) the principal of, and interest and premium, if any, on, the
Loans,
(b) the Letter of Credit Obligations and all other obligations of
the Borrowers to FCC, the Administrative Agent, any Lender or any Affiliate of
a Lender arising in connection with the issuance of Letters of Credit or Letter
of Credit Guarantees,
(c) all obligations of the Borrowers (or any of them) to any
Lender or any Affiliate of a Lender under any Interest Rate Agreement or
foreign exchange contract or option,
(d) all obligations of the Loan Parties to any Lender or Lender's
Affiliate in connection with the maintenance of accounts, funds transfer,
account analysis, cash management fees, and related items, and
(e) all Indebtedness, liabilities, obligations, covenants and
duties of the Borrowers (or any of them) or any Subsidiary to the
Administrative Agent, or the Lenders (or any of them) or to any Affiliate of
the Administrative Agent or any Lender of every kind, nature and description
arising under or in respect of this Agreement, the Notes or any of the other
Loan Documents, whether direct or indirect, absolute or contingent, due or not
due, contractual or tortious,
32
liquidated or unliquidated, and whether or not evidenced by any note, and
whether or not for the payment of money, including without limitation, fees
required to be paid pursuant to ARTICLE 5 and expenses required to be paid or
reimbursed pursuant to SECTION 16.2.
"Security Documents" means each of this Agreement and the following:
(a) the Mortgages,
(b) the Financing Statements,
(c) the Pledge Agreements,
(d) the Guarantor Security Agreements,
(e) the Aircraft Security Agreement,
(f) the Control Agreements,
(g) the Licensor Agreements,
(h) the Trademark Security Agreement,
(i) the Patent Security Agreement,
(j) each Guaranty Agreement, and
(k) each other writing executed and delivered by a Loan Party or
any other Person securing the Secured Obligations.
"Security Interest" means the Liens of the Administrative Agent, for
the benefit of itself as Administrative Agent and the Lenders and Affiliates of
the Lenders, on and in the Collateral and the Real Estate effected hereby or by
any of the Security Documents or pursuant to the terms hereof or thereof.
"Senior Notes" means up to $250,000,000 aggregate principal amount at
maturity of 9-1/4% per annum unsecured Senior Notes due 2010 outstanding under
the Senior Note Indenture (including any "Exchange Notes" issued in respect of
the "Initial Notes" as each such term is defined in the Senior Note Indenture).
"Senior Note Documents" means the Senior Notes, the Senior Note
Indenture and the Registration Rights Agreement, as defined in the Senior Note
Indenture.
"Senior Note Indenture " means the Indenture dated as of April 18,
2002 entered into by ▇▇▇▇▇▇▇, certain Subsidiaries as guarantors, and Wachovia
Bank, National Association, as Trustee.
"Subordinated Debt" means any Debt of a Borrower in an amount, and
that is subordinated to the Secured Obligations on terms and conditions,
acceptable to the Required Lenders.
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"Subsidiary" when used to determine the relationship of a Person to
another Person, means a Person of which more than 50% of any class or classes
of stock or more than 50% of other Equity Interests is owned of record or
beneficially by such other Person, or by one or more Subsidiaries of such other
Person, or by such other Person and one or more Subsidiaries of such Person,
(i) if the holders of such stock, or other Equity Interests, (A) are
ordinarily, in the absence of contingencies, entitled to vote for the election
of a majority of the directors (or other individuals performing similar
functions) of such Person, even though the right so to vote has been suspended
by the happening of such a contingency, or (B) are entitled, as such holders,
to vote for the election of a majority of the directors (or individuals
performing similar functions) of such Person, whether or not the right so to
vote exists by reason of the happening of a contingency, or (ii) in the case of
such other Equity Interests, if such Equity Interests constitute a majority
voting interest. When used without other designation of ownership, "Subsidiary"
means a Subsidiary of ▇▇▇▇▇▇▇.
"Supporting Letter of Credit" has the meaning set forth in SECTION
3.9.
"Swingline Facility" means an amount equal to $20,000,000.
"Swingline Lender" means FCC and each Lender that succeeds to such
capacity with the consent of the Administrative Agent.
"Swingline Loan" means each advance by the Swingline Lender to the
Borrowers pursuant to SECTION 2A.1.
"Swingline Loan Request" has the meaning set forth in SECTION 2A.2.
"Swingline Note" means the Swingline Note made by the Borrowers
payable to the order of the Swingline Lender evidencing the joint and several
obligation of the Borrowers to pay the aggregate unpaid principal amount of the
Swingline Loans made to them by the Swingline Lender under the Swingline
Facility (and any promissory note that may be issued from time to time in
substitution, renewal, extension, replacement or exchange therefor)
substantially in the form of EXHIBIT A-2 hereto, with all blanks properly
completed, either as originally executed or as the same may from time to time
be supplemented, modified, amended, renewed, extended or refinanced.
"Term Loan" means the aggregate Loans outstanding under the Term Loan
Facility and refers to both LIBOR Term Loans and Base Rate Term Loans.
"Term Loan Facility" means the credit facility described in SECTION
4.1(a) providing for Term Loans in the principal amount of up to the lesser of
(a) $25,000,000 and (b) the sum of 60% of the Appraised Value, on a net orderly
liquidation basis, of the Borrowers' Equipment, plus 50% of the Appraised
Value, on a fair market basis, of the Borrowers' Real Estate subject to
Mortgages.
"Term Loan Lender" means each Lender holding any portion of the
outstanding Term Loan.
34
"Term Note" means each Term Note made by the Borrowers payable to the
order of a Lender evidencing the joint and several obligation of the Borrowers
to pay the aggregate unpaid principal amount of the Loans made to them by such
Lender under the Term Loan Facility (and any promissory note or notes that may
be issued from time to time in substitution, renewal, extension, replacement or
exchange therefor whether payable to such Lender or to a different Lender in
connection with a Person becoming a Lender after the Effective Date or
otherwise) substantially in the form of EXHIBIT B hereto, with all blanks
properly completed, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or refinanced.
"Termination Date" means April 18, 2007 or such earlier date as all
Secured Obligations shall have been irrevocably paid in full and the Revolving
Credit Facility terminated.
"Trademark Security Agreement" means each Security Agreement
(Trademarks), dated on or about the Effective Date, made by a Loan Party to the
Administrative Agent.
"Trademarks" means and includes in each case whether now existing or
hereafter arising or acquired, all of the Borrowers' right, title and interest
in and to
(a) trademarks (including service marks), trade names and trade
styles and the registrations and applications for registration thereof and the
goodwill of the business symbolized by the trademarks,
(b) licenses of the foregoing, whether as licensee or licensor,
(c) renewals thereof,
(d) income, royalties, damages and payments now or hereafter due
and/or payable with respect thereto, including, without limitation, damages,
claims and payments for past and future infringements thereof,
(e) rights to ▇▇▇ for past, present and future infringements
thereof, including the right to settle suits involving claims and demands for
royalties owing, and
(f) all rights corresponding to any of the foregoing throughout
the world.
"Type" when used in respect of any Loan or Borrowing, shall refer to
the rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the relevant jurisdiction.
"Unfunded Vested Accrued Benefits" means at any time, with respect to
any Benefit Plan that is a pension plan within the meaning of Section 3(2) of
ERISA (other than any such plan that is not intended to be a "qualified plan"
under Code Section 401(a)), the amount (if any) by which (a) the present value
of all vested nonforfeitable benefits under such Benefit Plan exceeds (b) the
fair market value of all such Benefit Plan assets allocable to such benefits,
as determined using
35
the valuation date and such reasonable actuarial methods and valuation
liability interest rate and other assumptions as are specified in the Schedule
B (Actuarial Information) to the most recent Annual Report (Form 5500) filed
with respect to such Benefit Plan.
"Unused Commitments" has the meaning specified in SECTION 5.2(b).
"Wholly Owned Subsidiary" when used to determine the relationship of a
Subsidiary to a Person means a Subsidiary all of the issued and outstanding
shares (other than directors' qualifying shares) of the capital stock or other
Equity Interests of which shall at the time be owned by such Person or one or
more of such Person's Wholly Owned Subsidiaries or by such Person and one or
more of such Person's Wholly Owned Subsidiaries.
Section 1.2 General Interpretive Rules.
(a) All terms of an accounting nature not specifically defined
herein shall have the meanings ascribed thereto by GAAP.
(b) The terms accounts, chattel paper, contract rights,
documents, equipment, instruments, general intangibles, payment intangibles,
promissory note, supporting obligation, deposit account, and inventory, as and
when used in this Agreement or the Security Documents (without being
capitalized), shall have the meanings given those terms in the UCC.
(c) Unless otherwise specified, the words "hereof," "herein,"
"hereunder" and words of similar import, when used in this Agreement, refer to
this Agreement as a whole and not to any particular provision, section or
subsection of this Agreement.
(d) Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and plural,
and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, the feminine and the neuter. Words denoting individuals include
corporations and vice versa.
(e) References to any legislation or statute or code, or to any
provisions of any legislation or statute or code, shall include any
modification or reenactment of, or any legislative, statutory or code provision
substituted for, such legislation, statute or code or provision thereof.
(f) References to any document or agreement (including this
Agreement) shall include references to such document or agreement as amended,
novated, supplemented, modified or replaced from time to time, so long as and
to the extent that such amendment, novation, supplement, modification or
replacement is not prohibited by the terms of this Agreement or is consented,
if such consent is required, in accordance with the applicable provisions of
this Agreement.
(g) Except where specifically restricted in a Loan Document,
references to any Person include its successors and substitutes and assigns
permitted or not prohibited under such Loan Document.
(h) References to the time of day are to the time of day in the
city in which the Agent's Office is located.
36
(i) The terms "payment", "prepayment", "distribution" and similar
terms used in the definitions "Restricted Distribution" and "Restricted
Payment" and in SECTION 12.6, shall include payment by means of the transfer of
funds or of property and, in the event of a transfer of property, the payment
shall be deemed to be in an amount equal to the greater of the fair market
value and the book value of the property at the time of the transfer.
(j) Titles of Articles and Sections in this Agreement are for
convenience only, do not constitute part of this Agreement and neither limit
nor amplify the provisions of this Agreement, and all references in this
Agreement to Articles, Sections, subsections, paragraphs, clauses, subclauses,
Schedules, Annexes or Exhibits shall refer to the corresponding Article,
Section, subsection, paragraph, clause or subclause of, or Schedule, Annex or
Exhibit attached to, this Agreement, unless specific reference is made to the
articles, sections or other subdivisions or divisions of, or to schedules or
exhibits to, another document or instrument.
(k) Whenever from the context it appears appropriate, the term
"Loan", including such term as used as part of a defined term including the
term "Loan", shall mean and include a Loan made by all Lenders to the Borrowers
as well as a Lender's Ratable Share of any Loan.
(l) Whenever the phrase "to the knowledge of the Borrower(s)" or
words of similar import relating to the knowledge of a Borrower are used
herein, such phrase shall mean and refer to the actual knowledge of the
President, Chief Executive Officer or Financial Officer of ▇▇▇▇▇▇▇.
(m) Unless otherwise specified herein, any Lien created or
purported to be created hereby or by or pursuant to any Loan Documents in favor
of the Administrative Agent and each payment made to the Administrative Agent,
is and shall be deemed to have been created in favor of the Administrative
Agent, for its benefit as the Administrative Agent and for the Ratable benefit
of the Lenders, or made to and received by the Administrative Agent for the
Ratable benefit of the Lenders, as the case may be.
Section 1.3 Exhibits, Annexes and Schedules. All Exhibits,
Annexes and Schedules attached hereto are by this reference made a part hereof.
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ARTICLE 2
REVOLVING CREDIT FACILITY
Section 2.1 Revolving Credit Loans. Upon the terms and subject to
the conditions of, and in reliance upon the representations and warranties made
under, this Agreement, each Revolving Credit Lender agrees, severally, but not
jointly, to make Revolving Credit Loans under the Revolving Credit Facility to
the Borrowers from time to time from the Effective Date to but not including
the Termination Date, as requested or deemed requested by the Borrowers'
Representative in accordance with the terms of SECTION 2.2, in amounts equal to
such Lender's Ratable Share of each Revolving Credit Loan requested or deemed
requested hereunder up to an aggregate amount at any one time outstanding equal
to such Lender's Ratable Share of the Borrowing Base; PROVIDED, HOWEVER, that
the aggregate principal amount of all outstanding Revolving Credit Loans (after
giving effect to the Loans requested) shall not exceed the Revolving Credit
Facility minus the Letter of Credit Reserve minus the aggregate outstanding
principal amount of any Swingline Loans. It is expressly understood and agreed
that the Lenders may and at present intend to use the Borrowing Base as a
maximum ceiling on Loans made to the Borrowers under the Revolving Credit
Facility; PROVIDED, HOWEVER, that it is agreed that should the aggregate
outstanding amount of such Loans exceed the ceiling so determined or any other
limitation set forth in this Agreement, such Loans shall nevertheless
constitute Secured Obligations and, as such, shall be entitled to all benefits
thereof and security therefor. The principal amount of any Loans made under the
Revolving Credit Facility which is repaid may be reborrowed by the Borrowers,
subject to the terms and conditions of this Agreement, in accordance with the
terms of this SECTION 2.1. The Administrative Agent's and each Revolving Credit
Lender's books and records reflecting the date and the amount of each Loan made
under the Revolving Credit Facility and each repayment of principal thereof
shall constitute prima facie evidence of the accuracy of the information
contained therein, subject to the provisions of SECTION 5.7.
Section 2.2 Manner of Borrowing. Borrowings shall be made as
follows:
(a) Requests for Borrowing.
(i) Base Rate Revolving Credit Loans. A request for the
Borrowing of Base Rate Revolving Credit Loans shall be made, or shall
be deemed to be made, in the following manner:
(A) with respect to any Loans to be made on the
Effective Date, which shall be Base Rate Loans, the
Borrowers' Representative shall give the Administrative Agent
the Initial Notice of Borrowing at least two Business Days
prior to the proposed date of the Borrowing, and, with
respect to each subsequent Borrowing, the Borrowers may
request a Base Rate Revolving Credit Loan by giving the
Administrative Agent a Notice of Borrowing, before 12:00 noon
on the proposed date of the Borrowing, PROVIDED that if such
notice is received after 12:00 noon on the proposed date of
Borrowing, the proposed Borrowing may be postponed by the
Administrative Agent to the next Business Day;
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(B) whenever a check or other item is presented
to a Disbursing Bank for payment against a Disbursement
Account in an amount greater than the then available balance
in such account, such Disbursing Bank shall, and is hereby
irrevocably authorized by the Borrowers to, give the
Administrative Agent notice thereof, which notice shall be
deemed to be a request for a Base Rate Revolving Credit Loan
on the date of such notice in an amount equal to the excess
of such check or other item over such available balance, and
such request shall be irrevocable;
(C) unless payment is otherwise made by the
Borrowers, the becoming due of any amount required to be paid
under this Agreement or any of the Notes as interest shall be
deemed to be a request for a Base Rate Revolving Credit Loan
on the due date in the amount required to pay such interest,
and such request shall be irrevocable;
(D) unless payment is otherwise made by the
Borrowers, the becoming due of any other Secured Obligation
shall be deemed to be a request for a Base Rate Revolving
Credit Loan on the due date in the amount then so due, and
such request shall be irrevocable; and
(E) the receipt by the Administrative Agent of
notification from FCC to the effect that a payment has been
made under a Letter of Credit Guarantee and that the
Borrowers have failed to reimburse FCC therefor in accordance
with the terms of ARTICLE 3, shall be deemed to be a request
for a Base Rate Revolving Credit Loan on the date such
notification is received in the amount of such payment which
is so unreimbursed.
(ii) LIBOR Loans. At any time after the Effective Date,
and so long as no Default or Event of Default has occurred and is
continuing, the Borrowers may request a LIBOR Loan by giving the
Administrative Agent a Notice of Borrowing (which notice shall be
irrevocable) not later than 12:00 noon on the date three Business Days
before the day on which the requested LIBOR Loan is to be made. The
Borrowers may direct the Administrative Agent to apply the proceeds of
a LIBOR Loan to Secured Obligations as described in SECTIONS
2.2(a)(i)(B), (C), (D) and (E) and the Administrative Agent shall
comply with such direction to the extent that proceeds of a Borrowing
of LIBOR Loans are available to be so applied and in such case, no
duplicative Borrowing of Base Rate Revolving Credit Loans will be
deemed to have been requested.
(iii) Notification of Lenders. In the case of each LIBOR
Loan and, unless the Administrative Agent and FCC have elected to make
a Swingline Loan to the Borrowers pursuant to SECTION 2A.2, in the
case of each Base Rate Loan, the Administrative Agent shall promptly
notify the Lenders of any Notice of Borrowing given or deemed given
pursuant to this SECTION 2.2(a) by 12:00 noon on the proposed
Borrowing date (in the case of Base Rate Loans) or by 3:00 p.m. three
Business Days before the proposed Borrowing date (in the case of LIBOR
Loans). If the Administrative Agent does so notify the Lenders, then
not later than 1:30 p.m. on the proposed Borrowing date, each Lender
will make available to the Administrative Agent, for the account of
the
39
Borrowers, at the Agent's Office in funds immediately available to the
Administrative Agent, such Lender's Ratable Share of the Base Rate
Loan or LIBOR Loan, as the case may be.
(b) Disbursement of Loans. The Borrowers hereby irrevocably
authorize the Administrative Agent to disburse the proceeds of each Borrowing
requested, or deemed to be requested, pursuant to SECTION 2.2(a) as follows:
(i) the proceeds of each Borrowing requested under
SECTIONS 2.2(a)(i)(A) (other than the Borrowing of any Loans made on
the Effective Date) or (B) or 2.2(a)(ii) shall be disbursed by the
Administrative Agent in Dollars in immediately available funds by wire
transfer to a Disbursement Account or, in the absence of a
Disbursement Account, by wire transfer to such other deposit account
of a Borrower as may be agreed upon by the Borrowers and the
Administrative Agent from time to time, and the proceeds of the Loans
to be made on the Effective Date under SECTION 2.2(a)(i)(A) shall be
disbursed in accordance with the Initial Notice of Borrowing,
(ii) the proceeds of each Borrowing deemed requested
under SECTION 2.2(a)(i)(C) or (D) shall be disbursed by the
Administrative Agent by way of direct payment of the relevant Secured
Obligation, and
(iii) the proceeds of each Borrowing deemed requested
under SECTION 2.2(a)(i)(E) shall be disbursed by the Administrative
Agent directly to FCC on behalf of the Borrowers for application to
the Reimbursement Obligations.
Section 2.3 Repayment; Prepayment. The Revolving Credit Loans
will be repaid as follows:
(a) The outstanding principal amount of all Revolving Credit
Loans is due and payable, and shall be repaid by the Borrowers, as their joint
and several obligation, in full, not later than the Termination Date and the
outstanding principal amount of any Revolving Credit Loan may be repaid by the
Borrowers at any time and from time to time prior to the Termination Date;
(b) If at any time the aggregate outstanding unpaid principal
amount of the Revolving Credit Loans and Swingline Loans exceeds the Borrowing
Base in effect at such time, but subject to the provisions of SECTION 5.9(e),
the Borrowers shall repay the Revolving Credit Loans in an amount sufficient to
reduce the aggregate unpaid principal amount of the Revolving Credit Loans by
an amount equal to such excess, together with accrued and unpaid interest on
the amount so repaid to the date of repayment; and
(c) The Revolving Credit Loans may be prepaid in whole or in
part, at any time and from time to time, on one Business Day's notice, without
premium or penalty. The Borrowers hereby instruct the Administrative Agent to
repay the Revolving Credit Loans outstanding on any day in an amount equal to
the amount received by the Administrative Agent on such day pursuant to SECTION
9.1(c); PROVIDED that payments received in excess of outstanding Revolving
Credit Loans or payments received (when no Default or Event of Default exists)
on account of LIBOR Loans which would otherwise result in prepayment of such
LIBOR Loans prior to the
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end of the Interest Period applicable thereto may, upon the instruction of the
Borrowers to the Administrative Agent not later than 2:00 p.m. on any Business
Day, be applied to the Cash Collateral Account or any Investment Account.
Repayments pursuant to SECTION 2.3(b) or (c) shall be applied first to the Base
Rate Revolving Credit Loans and then to LIBOR Revolving Credit Loans.
Section 2.4 Revolving Credit Note. Subject to the provisions of
SECTION 5.13(f), each Revolving Credit Lender's Revolving Credit Loans and the
joint and several obligation of the Borrowers to repay such Revolving Credit
Loans shall also be evidenced by a Revolving Credit Note payable to the order
of such Lender. Each Revolving Credit Note shall be dated the Effective Date
(or later "effective date" under any Assignment and Acceptance) and be duly and
validly executed and delivered by the Borrowers.
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ARTICLE 2A
SWINGLINE FACILITY
Section 2A.1 Swingline Loans. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, the Swingline Lender shall make Swingline Loans to the
Borrowers from time to time, from and after the Effective Date until the
Termination Date, as requested by the Borrowers in accordance with the terms of
SECTION 2A.2, up to an aggregate principal amount of Swingline Loans at any
time outstanding not to exceed the lesser of (i) the Swingline Facility and
(ii) the Borrowing Base MINUS the aggregate principal amount of outstanding
Revolving Credit Loans. The Swingline Loans will be deemed to be usage of the
Revolving Credit Facility for the purpose of calculating availability pursuant
to SECTION 2.1, but will not reduce the Swingline Lender's obligation to lend
its Ratable Share of the remaining unused Revolving Credit Facility.
Section 2A.2 Making Swingline Loans. Requests for Swingline Loans
(which shall be Base Rate Loans and shall not be entitled to be converted to
LIBOR Loans) shall be made not later than 12:00 noon on the Business Day of the
proposed Swingline Loan by delivery by telex, telegraph, telecopy or telephone
of a request therefor by Borrowers' Representative to the Administrative Agent
and the Swingline Lender. Each such notice (a "Swingline Loan Request") shall
specify (i) the proposed borrowing date and (ii) the amount of Swingline Loan
requested (which, in the case of deemed Settlement Date requests shall be,
respectively, the Settlement Date and the excess, if any, of the principal
amount of Swingline Loans available to be borrowed on the Settlement Date over
the outstanding principal amount of Swingline Loans on the Settlement Date).
Not later than 3:00 p.m. on the date specified for any Swingline Loan, the
Swingline Lender shall make available such Swingline Loan in immediately
available funds to the Administrative Agent at the Agent's Office. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in ARTICLE 6, the Administrative Agent will,
and the Borrowers hereby irrevocably authorize the Administrative Agent to,
disburse the proceeds of each Swingline Loan by making such funds available to
the Borrowers by wire transfer to such deposit account of a Borrower as the
Borrowers and the Administrative Agent may agree from time to time.
Section 2A.3 Repayment of Swingline Loans. The principal amount of
each Swingline Loan is due and payable, and shall be repaid by the Borrowers as
their joint and several obligation, in full on the Termination Date, together
with accrued and unpaid interest thereto such date.
Section 2A.4 Prepayment. If at any time the aggregate unpaid
principal amount of Swingline Loans outstanding to the Borrowers from the
Swingline Lender exceeds the amount set forth in SECTION 2A.1, the Borrowers
shall pay to the Administrative Agent for the account of the Swingline Lender
on demand by the Administrative Agent, an amount equal to such excess, together
with accrued and unpaid interest on the principal amount prepaid to the date of
prepayment. Notwithstanding the foregoing, no such prepayment shall be required
if the Borrowers shall have made an appropriate prepayment in accordance with
the provisions of SECTION 2.3(b).
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Section 2A.5 Swingline Note. The Swingline Loans made by the
Swingline Lender and the obligation of the Borrowers to repay such Loans shall
be evidenced by, and be repayable in accordance with the terms of, a single
Swingline Note, made by the Borrowers payable to the order of the Swingline
Lender. The Swingline Note shall be dated the Effective Date and be duly and
validly executed and delivered by the Borrowers.
Section 2A.6 Settlement with Other Lenders. All payments of
principal, interest and any other amount with respect to each Swingline Loan
shall be payable to and received by the Administrative Agent for the account of
the Swingline Lender. Upon demand by the Swingline Lender, with notice thereof
to the Administrative Agent, and notwithstanding the occurrence and
continuation at the time of such demand of any Default or Event of Default, but
in any event not less frequently than every ten days, each Revolving Credit
Lender shall make a Base Rate Revolving Credit Loan in the amount of its
Ratable Share of the outstanding Swingline Loans for the account of the
Borrowers or purchase a participation in such amount in each outstanding
Swingline Loan, the proceeds of which shall be paid over to the Swingline
Lender and applied to the repayment of such Swingline Loans. Any payments
received by the Administrative Agent prior to such repayment by the Revolving
Credit Lenders which in accordance with the terms of this Agreement are to be
applied to the reduction of the outstanding principal balance of Swingline
Loans shall be paid over to the Swingline Lender and so applied.
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ARTICLE 3
LETTER OF CREDIT GUARANTEES
Section 3.1 Agreement to Issue. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, FCC will issue or cause the issuance of, including by
issuance of Letter of Credit Guarantees, for the account of any Borrower or
Subsidiary one or more Letters of Credit in accordance with this ARTICLE 3,
from time to time during the period commencing on the Effective Date and ending
on the Termination Date.
Section 3.2 Amounts. FCC shall not have any obligation to
issue or cause the issuance of any Letter of Credit at any time:
(a) if, after giving effect to the issuance of the requested
Letter of Credit, (i) the aggregate Letter of Credit Obligations of the
Borrowers would exceed the Letter of Credit Guarantee Facility then in effect
or (ii) the aggregate principal amount of Loans outstanding would exceed the
Borrowing Base (after reduction for the Letter of Credit Reserve in respect of
such Letter of Credit) or (iii) if no Loans are outstanding, the aggregate
Letter of Credit Obligations would exceed the Borrowing Base; or
(b) which has an expiration date after the last Business Day that
is later than five days prior to the Termination Date.
Section 3.3 Conditions. The obligation of FCC to issue any Letter
of Credit Guarantee is subject to the satisfaction of (a) the applicable
conditions precedent contained in ARTICLE 6 and (b) the following additional
conditions precedent in a manner satisfactory to the Administrative Agent and
FCC:
(i) the Borrowers shall have delivered to FCC and the
Administrative Agent at such times and in such manner as FCC or the
Administrative Agent may prescribe, a Reimbursement Agreement and such
other documents as may be required pursuant to the terms thereof, and
the form of the proposed Letter of Credit, all of which shall be
satisfactory in form and substance, as completed, to the Issuing Bank,
FCC and the Administrative Agent; and
(ii) as of the date of issuance, no law, rule or
regulation, or order of any court, arbitrator or governmental
authority having jurisdiction or authority over FCC shall purport by
its terms to enjoin or restrain FCC or commercial financing entities,
generally, from issuing guarantees, including guarantees of letter of
credit obligations, of the type and in the amount of the proposed
Letter of Credit Guarantee or the proposed Letter of Credit Guarantee
specifically.
Section 3.4 Issuance of Letter of Credit Guarantees.
(a) Request for Issuance. A Borrower shall give the Issuing Bank,
FCC and the Administrative Agent written notice of such Borrower's request for
the issuance of a Letter of Credit no later than three Business Days prior to
the proposed date of issuance. Such notice shall
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be irrevocable and shall be accompanied by a completed form of letter of credit
application in a form acceptable to the Issuing Bank specifying at least the
name of the Subsidiary (if other than such Borrower) which will appear as the
account party on the face of such Letter of Credit, the original face amount of
the Letter of Credit requested, the effective date (which date shall be a
Business Day) of issuance of such requested Letter of Credit, whether the
Letter of Credit may be drawn in a single or in multiple draws, the date on
which such requested Letter of Credit is to expire (which date shall be a
Business Day earlier than the fifth day prior to the Termination Date), the
purpose for which the Letter of Credit is to be issued and the beneficiary of
the Letter of Credit. The Borrower shall attach to such notice the form of the
Letter of Credit that the Borrower requests be issued.
(b) Responsibilities of the Administrative Agent; Issuance. The
Administrative Agent shall determine, as of the Business Day immediately
preceding the requested effective date of issuance of a Letter of Credit set
forth in the notice from the Borrowers pursuant to SECTION 3.4(a), the amount
of Letter of Credit Availability. If (i) the form of requested Letter of Credit
delivered by the Borrowers to the Administrative Agent is acceptable to FCC and
the Administrative Agent in their sole, reasonable discretion, (ii) the amount
of the Letter of Credit Guarantee necessary to procure the issuance by the
Issuing Bank of such Letter of Credit is less than or equal to the Letter of
Credit Availability and (iii) the Administrative Agent has received a
certificate from the Borrowers stating that the applicable conditions set forth
in ARTICLE 6 have been satisfied, then FCC will join in the application for
such Letter of Credit or otherwise cause the Issuing Bank to issue the
requested Letter of Credit.
(c) Notice of Issuance. Promptly after the issuance of any Letter
of Credit supported by a Letter of Credit Guarantee, FCC or the Issuing Bank
shall give the Administrative Agent written or facsimile notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of such Letter
of Credit, and the Administrative Agent shall give each Lender a periodic
written report, not less frequently than monthly, of each such Letter of Credit
outstanding as of the date thereof, the amount available to be drawn thereunder
and the expiration date thereof.
(d) No Extension or Amendment. FCC shall not cause any Letter of
Credit to be extended or amended unless the requirements of this SECTION 3.4
are met as though a new Letter of Credit were being requested and issued.
Section 3.5 Duties of FCC. The rights and obligations of the
Issuing Bank in connection with any Letter of Credit shall be governed by the
Reimbursement Agreement for such Letter of Credit and in no event shall the
Administrative Agent or any Lender have any liability or obligation to any Loan
Party or its Subsidiaries for any failure or refusal or delay by the Issuing
Bank to issue, or error in issuing, any Letter of Credit. Any action taken or
omitted to be taken by FCC under or in connection with any Letter of Credit
Guarantee, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not result in any liability of FCC to any Lender or relieve
any Lender of its obligations hereunder to FCC. In determining whether to pay
under any Letter of Credit Guarantee, FCC shall have no obligation to confirm
that the Issuing Bank acted properly in honoring any drawing under the related
Letter of Credit and shall be entitled to rely on the Issuing Bank's demand for
payment as sufficient evidence of the Issuing Bank's entitlement thereto.
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Section 3.6 Payment of Reimbursement Obligations.
(a) Payment to Issuing Bank, FCC. Notwithstanding any provisions
to the contrary in any Reimbursement Agreement, the Borrowers agree, jointly
and severally, for the benefit of FCC and the other Lenders, to reimburse the
Issuing Bank for any drawings (whether partial or full) under each Letter of
Credit on demand and agree to pay to the Issuing Bank the amount of all other
Reimbursement Obligations and other amounts payable to the Issuing Bank under
or in connection with such Letter of Credit in accordance with the
Reimbursement Agreement. If FCC shall pay any amount under any Letter of Credit
Guarantee, the Borrowers shall, jointly and severally, unless the Borrowers
shall have already paid the amount in respect of which payment was made under
such Letter of Credit Guarantee to the Issuing Bank in accordance with a
Reimbursement Agreement, pay to FCC on the first Business Day following such
payment, an amount equal to the amount of the payment made by FCC under such
Letter of Credit Guarantee, together with interest on such amount for the
period from FCC's payment under the applicable Letter of Credit Guarantee,
until repayment in full of such amount, at the interest rate then applicable to
Base Rate Revolving Credit Loans. So long as FCC remains unpaid, it shall be
subrogated to all rights and remedies of (i) the Issuing Bank under the related
Reimbursement Agreement and (ii) any beneficiary of such Letter of Credit whose
claims against the account party on such Letter of Credit have been satisfied
with proceeds of a drawing under such Letter of Credit.
(b) Recovery or Avoidance of Payments. In the event any payment
by or on behalf of the Borrowers with respect to any Letter of Credit (or any
Reimbursement Obligation relating thereto) or any Letter of Credit Guarantee
received by FCC, the Issuing Bank or by the Administrative Agent and
distributed by the Administrative Agent to the Lenders on account of their
respective participations therein, is thereafter set aside, avoided or
recovered from FCC, the Issuing Bank or the Administrative Agent in connection
with any receivership, liquidation or bankruptcy proceeding, the Lenders shall,
upon demand by the Administrative Agent, pay to the Administrative Agent, for
the account of the Administrative Agent, FCC or the Issuing Bank, as the case
may be, their respective Ratable Shares of such amount set aside, avoided or
recovered together with interest at the rate required to be paid by the
Administrative Agent, FCC or the Issuing Bank upon the amount required to be
repaid by it.
Section 3.7 Participations.
(a) Purchase of Participations. Immediately upon the Effective
Date as to Letters of Credit outstanding on the Effective Date and immediately
upon issuance by the Issuing Bank of any other Letter of Credit, each Lender
shall be deemed to have irrevocably and unconditionally purchased and received
without recourse or warranty, an undivided interest and participation in the
Letter of Credit Obligations thereunder, equal to such Lender's Ratable Share
thereof (including, without limitation, all obligations of the Borrowers with
respect thereto, other than amounts owing to FCC or for the account of the
Issuing Bank under SECTION 5.2(c)), and any security therefor or guaranty or
other supporting obligation pertaining thereto.
(b) Sharing of Letter of Credit Payments. In the event that FCC
makes a payment under any Letter of Credit Guarantee and shall not have been
repaid such amount pursuant to SECTION 3.6, then the Borrowers shall be deemed
to have requested a Base Rate Revolving Credit
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Loan in the amount of such payment and, notwithstanding the occurrence or
continuance of a Default or Event of Default at the time of such payment, each
Lender shall be absolutely obligated to make its Ratable Share of such Loan
available to the Administrative Agent for disbursement as provided by SECTION
2.2(b) or to purchase a participation in the payment made by FCC under any such
Letter of Credit Guarantee.
(c) Sharing of Reimbursement Obligation Payments. Whenever FCC
receives a payment from or on behalf of the Borrowers or the Issuing Bank on
account of a Reimbursement Obligation as to which the Administrative Agent has
previously received for the account of FCC payment from a Lender pursuant to
this SECTION 3.7, FCC shall promptly pay to the Administrative Agent, for the
benefit of such Lender, such Lender's Ratable Share of the amount of such
payment from the Borrowers or the Issuing Bank in Dollars. Each such payment
shall be made by FCC on the Business Day on which FCC receives immediately
available funds from the Borrowers or the Issuing Bank pursuant to the
immediately preceding sentence, if received prior to 11:00 a.m. on such
Business Day, and otherwise on the next succeeding Business Day.
(d) Documentation. Upon the request of any Lender, the
Administrative Agent shall furnish to such Lender copies of any Letter of
Credit, Reimbursement Agreement, Letter of Credit Guarantee or application for
any Letter of Credit and such other documentation as to Letters of Credit as
may reasonably be requested by such Lender.
(e) Obligations Irrevocable. The obligations of each Lender to
make payments to the Administrative Agent with respect to any Letter of Credit
or Letter of Credit Guarantee in respect thereof and its participation therein
pursuant to the provisions of this SECTION 3.7 or otherwise and the obligations
of the Borrowers to make payments to FCC, the Issuing Bank or to the
Administrative Agent, for the account of Lenders, shall be irrevocable, shall
not be subject to any qualification or exception whatsoever and shall be made
in accordance with the terms and conditions of this Agreement (assuming, in the
case of the obligations of the Lenders to make such payments, that the Letter
of Credit has been issued in accordance with SECTION 3.4), including, without
limitation, any of the following circumstances:
(i) Any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) The existence of any claim, set-off, defense or
other right which the Borrowers (or any of them) may have at any time
against a beneficiary named in a Letter of Credit or any transferee of
any Letter of Credit (or any Person for whom any such transferee may
be acting), any Lender, FCC, the Issuing Bank or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the Borrowers or any
other Person and the beneficiary named in any Letter of Credit);
(iii) Any draft, certificate or any other document
presented under the Letter of Credit upon which payment has been made
in good faith and according to its terms proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
47
(iv) The surrender or impairment of any Collateral or any
other security for the Secured Obligations or the performance or
observance of any of the terms of any of the Loan Documents;
(v) The occurrence of any Default or Event of Default;
or
(vi) FCC's, the Issuing Bank's or the Administrative
Agent's failure to deliver the notice provided for in SECTION 3.4(c).
Section 3.8 Indemnification; Exoneration.
(a) Indemnification. In addition to amounts payable as elsewhere
provided in this ARTICLE 3, the Borrowers, jointly and severally, agree to
protect, indemnify, pay and save harmless the Lenders, FCC, the Issuing Bank
and the Administrative Agent from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) which any Lender, FCC, the Issuing Bank or the Administrative
Agent may incur or be subject to as a consequence, directly or indirectly, of
(i) the issuance of any Letter of Credit, other than as
a result of its gross negligence or willful misconduct, as determined
by a court of competent jurisdiction, or
(ii) the failure of the Issuing Bank to honor a drawing
under any Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto
governmental authority (all such acts or omissions being hereinafter
referred to collectively as "Government Acts").
(b) Assumption of Risk by the Borrowers. As among the Borrowers,
the Lenders, FCC, the Issuing Bank and the Administrative Agent, the Borrowers
assume all risks of the acts and omissions of, or misuse of any of the Letters
of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions
of the applications for the issuance of Letters of Credit, the Lenders, FCC,
the Issuing Bank and the Administrative Agent shall not be responsible for:
(i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any Person in
connection with the application for and issuance of and presentation
of drafts with respect to any of the Letters of Credit, even if it
should prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason;
(iii) the failure of the beneficiary of any Letter of
Credit to comply duly with conditions required in order to draw upon
such Letter of Credit;
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(iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any Letter
of Credit or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any Letter
of Credit of the proceeds of any drawing under such Letter of Credit;
or
(viii) any consequences arising from causes beyond the
control of the Lenders, FCC, the Issuing Bank or the Administrative
Agent, including, without limitation, any Government Acts.
None of the foregoing shall affect, impair or prevent the vesting of any of the
Administrative Agent's rights or powers under this SECTION 3.8.
(c) Exoneration. In furtherance and extension, and not in
limitation, of the specific provisions set forth above, any action taken or
omitted by the Administrative Agent, FCC, the Issuing Bank or any Lender under
or in connection with any of the Letters of Credit or any related certificates,
if taken or omitted in good faith, shall not result in any liability of any
Lender, FCC, the Issuing Bank or the Administrative Agent to the Borrowers or
relieve any Borrower of any of its obligations hereunder to any such Person.
Section 3.9 Supporting Letter of Credit; Cash Collateral Account.
Upon the occurrence of an Event of Default or if, notwithstanding the
provisions of SECTION 3.2(b), any Letter of Credit is outstanding on the
Termination Date, then on or prior to the Termination Date, the Borrowers
shall, as their joint and several obligation, promptly on demand by the
Administrative Agent, deposit with the Administrative Agent, for the Ratable
benefit of the Lenders, with respect to each Letter of Credit then outstanding,
as the Administrative Agent shall specify, either (a) a standby letter of
credit (a "Supporting Letter of Credit") in form and substance satisfactory to
the Administrative Agent, issued by an issuer satisfactory to the
Administrative Agent in its sole and absolute judgment in an amount equal to
105% of the greatest amount for which such Letter of Credit may be drawn, under
which Supporting Letter of Credit the Administrative Agent shall be entitled to
draw amounts necessary to reimburse the Administrative Agent, FCC and the
Lenders for payments made by the Administrative Agent, FCC or the Lenders under
the related Letter of Credit Guarantee or under any reimbursement or guaranty
agreement with respect thereto, or (b) Cash Collateral in an amount necessary
to reimburse the Administrative Agent, FCC and the Lenders for payments made by
the Administrative Agent, FCC and the Lenders under the related Letter of
Credit Guarantee or under any reimbursement or guaranty agreement with respect
thereto. Such Supporting Letter of Credit or Cash Collateral shall be held by
the Administrative Agent for the benefit of FCC and the Lenders, as security
for, and to provide for the payment of, the Reimbursement Obligations. In
addition, the Administrative Agent may at any time after such Event of Default
or the Termination Date apply any or all of such Cash Collateral to the payment
of any or all of the
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Secured Obligations then due and payable. The Cash Collateral shall be
deposited in the Cash Collateral Account or an Investment Account and shall be
administered in accordance with the provisions of SECTION 5.16.
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ARTICLE 4
TERM LOAN FACILITY
Section 4.1 Term Loans. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, each Term Loan Lender agrees severally, but not jointly,
to make a Base Rate Loan to the Borrowers on the Effective Date, in a principal
amount equal to such Lender's Ratable Share of the Term Loan Facility (subject
to conversion thereafter in accordance with the provisions of SECTION 5.4).
Section 4.2 Manner of Borrowing Term Loan. The Borrowers, through
the Borrowers' Representative, shall give the Administrative Agent an Initial
Notice of Borrowing at least two Business Days' prior to the occurrence of the
Effective Date. Upon receipt of such notice from the Borrowers' Representative,
the Administrative Agent shall promptly notify each Term Loan Lender thereof.
Each Term Loan Lender will make a Base Rate Loan in an amount equal to its
Ratable Share of the aggregate principal amount of the Term Loans properly
requested in the Initial Notice of Borrowing available to the Administrative
Agent, for the account of the Borrowers, at the Agent's Office, prior to 12:00
noon on the Effective Date (assuming satisfaction of the applicable conditions
set forth in ARTICLE 6) in funds immediately available to the Administrative
Agent. On the Effective Date, upon satisfaction of the applicable conditions
set forth in ARTICLE 6, the Administrative Agent will disburse the Term Loan on
the Effective Date, in same day funds in accordance with the terms of the
Initial Notice of Borrowing.
Section 4.3 Repayment of Term Loan. The principal amount of the
Term Loan is due and payable, and shall be repaid in full by the Borrowers, as
their joint and several obligation, (a) in 10 consecutive equal installments of
$2,500,000 each on successive Installment Payment Dates, beginning September
30, 2002, PROVIDED that the payment due on December 31, 2006 shall be in the
full amount of the then outstanding and unpaid principal balance of the Term
Loan or (b) if sooner, on the date of termination of the Revolving Credit
Facility. The Borrower may prepay the Term Loan in accordance with the
provisions of SECTION 5.10(g).
Section 4.4 Term Notes. Subject to the provisions of SECTION 5.13
(f), the Loans made by each Term Loan Lender as part of the Term Loan and the
joint and several obligation of the Borrowers to repay such Loans shall also be
evidenced by a Term Note payable to the order of such Lender. Each Term Note
shall be dated the Effective Date (or the later "effective date" under any
Assignment and Acceptance) and be duly and validly executed and delivered by
the Borrowers.
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ARTICLE 5
GENERAL LOAN PROVISIONS
Section 5.1 Interest.
(a) (i) Base Rate Loans. Subject to the provisions of SECTION
5.1(d), the Borrowers will pay interest on the unpaid principal amount of each
Base Rate Loan, for each day from the day such Loan is made until such Loan is
paid (whether at maturity, by reason of acceleration, or otherwise) or is
converted to a Loan of a different Type, at a rate per annum equal to the sum
of (i) the Applicable Margin and (ii) the Base Rate, payable monthly in arrears
as it accrues on the first day of each month, and upon any prepayment thereof
on the amount prepaid.
(ii) LIBOR Loans. Subject to the provisions of SECTION
5.1(d), the Borrowers will pay interest on the unpaid principal amount
of each LIBOR Loan for the applicable Interest Period at a rate per
annum equal to the sum of (i) the Applicable Margin and (ii) LIBOR
payable monthly in arrears as it accrues on the first day of each
month, on the last day of any Interest Period, and upon any prepayment
thereof on the amount prepaid.
(b) Swingline Loans. Subject to the provisions of SECTION 5.1(d),
the Borrowers will pay interest on the unpaid principal amount of each
Swingline Loan for each day from the day such Loan is made, until such Loan is
paid (whether at maturity, by reason of acceleration, or otherwise), at a rate
per annum equal to the sum of (i) the Applicable Margin and (ii) the Base Rate,
payable monthly in arrears as it accrues on the first day of each month.
(c) Other Secured Obligations. The Borrowers will, to the extent
permitted by Applicable Law, pay interest on the unpaid principal amount of any
Secured Obligation that is due and payable (other than the Loans in accordance
with SECTION 5.1(a) or (b), as applicable), on demand, as if such Secured
Obligation were a Base Rate Revolving Credit Loan; PROVIDED that interest shall
not accrue on any Secured Obligation arising under SECTION 16.2 or 16.3 until
the fifth day after the Administrative Agent's demand on the Borrowers for
payment or reimbursement thereof. Interest that is due and payable shall be
deemed to be a liquidated amount and obligation of the Borrowers and shall, to
the extent permitted by Applicable Law, bear interest in accordance with this
SECTION 5.1(c).
(d) Default Rate. If an Event of Default shall occur and be
continuing, the unpaid principal amount of the Loans and other Secured
Obligations shall, at the election of the Administrative Agent or the Required
Lenders, no longer bear interest in accordance with the terms of SECTION
5.1(a), (b) or (c), but shall bear interest for each day from the date of such
Event of Default until such Event of Default shall have been cured or waived at
a rate per annum equal to the sum of (i) the Default Margin and (ii) the rate
otherwise applicable to such Loan or other Secured Obligation, payable on
demand. The interest rate provided for in the preceding sentence shall, to the
extent permitted by Applicable Law, apply to and accrue on the amount of any
judgment entered with respect to any Secured Obligation and shall continue to
accrue at such rate during any proceeding described in SECTION 13.1(g) or (h).
52
(e) Calculation of Interest. The interest rates provided for in
SECTIONS 5.1(a), (b), (c) and (d) shall be computed on the basis of a year of
360 days and the actual number of days elapsed. Each interest rate determined
with reference to the Base Rate shall be adjusted automatically as of the
opening of business on the effective date of each change in the Base Rate.
(f) Maximum Rate. It is not intended by the Lenders, and nothing
contained in this Agreement or the Notes shall be deemed, to establish or
require the payment of a rate of interest in excess of the maximum rate
permitted by Applicable Law (the "Maximum Rate"). If, in any month, the
Effective Interest Rate, absent such limitation, would have exceeded the
Maximum Rate, then the Effective Interest Rate for that month shall be the
Maximum Rate, and, if in future months, the Effective Interest Rate would
otherwise be less than the Maximum Rate, then the Effective Interest Rate shall
remain at the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid if the same
had not been limited by the Maximum Rate. In the event that, upon payment in
full of the Secured Obligations, the total amount of interest paid or accrued
under the terms of this Agreement is less than the total amount of interest
which would have been paid or accrued if the Effective Interest Rate had at all
times been in effect, then the Borrowers shall, to the extent permitted by
Applicable Law, pay to the Lenders an amount equal to the excess, if any, of
(i) the lesser of (A) the amount of interest which would have been charged if
the Maximum Rate had, at all times, been in effect and (B) the amount of
interest which would have accrued had the Effective Interest Rate, at all
times, been in effect and (ii) the amount of interest actually paid or accrued
under this Agreement. In the event the Lenders receive, collect or apply as
interest any sum in excess of the Maximum Rate, such excess amount shall be
applied to the reduction of the principal balance of the Secured Obligations,
and if no such principal is then outstanding, such excess or part thereof
remaining, shall be paid to the Borrowers. For the purposes of computing the
Maximum Rate, to the extent permitted by Applicable Law, all interest and
charges, discounts, amounts, premiums or fees deemed to constitute interest
under Applicable Law, shall be amortized, prorated, allocated and spread in
substantially equal parts throughout the full term of this Agreement. The
provisions of this SECTION 5.1(f) shall be deemed to be incorporated into every
Loan Document (whether or not any provision of this SECTION 5.1(f) is
specifically referred to therein).
Section 5.2 Certain Fees; Agent Fee.
(a) Other Fees. (i) On the Effective Date, ▇▇▇▇▇▇▇ shall pay to
FCC, for its account and for the account of FSI, certain fees and (ii) on the
Effective Date and each Anniversary, ▇▇▇▇▇▇▇ shall pay to the Administrative
Agent, agent's fees, in each case in accordance with the provisions of the
separate letter agreement between ▇▇▇▇▇▇▇, FCC and FSI.
(b) Unused Fee. In connection with and as consideration for the
holding available for the use of the Borrowers hereunder the full amount of the
Revolving Credit Facility, the Borrowers, jointly and severally, will pay to
the Administrative Agent, for the Ratable benefit of the Revolving Credit
Lenders, for each day from the Effective Date until the Termination Date, a fee
at a rate equal to 1/2 of 1% per annum of the Unused Commitments, SUBJECT,
HOWEVER, to quarterly adjustment on each Margin Adjustment Date in accordance
with the pricing matrix attached hereto as ANNEX B. "Unused Commitments" means
an amount equal to the Revolving Credit Facility, less the principal amount of
outstanding Revolving Credit Loans, less the total
53
amount of Letter of Credit Obligations, in each case on the date of
determination. Such fees shall be payable quarterly in arrears the first day of
each January, April, July and October, beginning July 1, 2002, and on the date
of any permanent reduction in the Revolving Credit Facility.
(c) Letter of Credit and Letter of Credit Guarantee Fees. The
Borrowers, jointly and severally, agree to pay to the Administrative Agent
through its Treasury and International Services Group:
(i) for the Ratable benefit of the Lenders, fees on each
Letter of Credit or Letter of Credit Guarantee, at a rate per annum
equal to the Applicable Margin for LIBOR Revolving Credit Loans from
time to time, payable as to each Letter of Credit (or amendment
increasing the Letter of Credit Amount of an outstanding Letter of
Credit) or Letter of Credit Guarantee on the date of issuance for the
period from such date to the first day of the succeeding calendar
month, and thereafter monthly in advance on the first day of each
month, based on the Letter of Credit Amount of such Letters of Credit
and Letter of Credit Guarantees outstanding on each such date;
(ii) for the account of the Issuing Bank, the standard
fees and charges of the Issuing Bank of issuing, administering,
amending, renewing, paying, canceling, transferring, and otherwise
administering letters of credit, as and when assessed as to any
Letters of Credit; and
(iii) for the account of the Issuing Bank (or FCC, if the
Bank is the Issuing Bank), an additional fronting fee at a rate of
0.125% per annum of the Letter of Credit Amount of each standby Letter
of Credit, payable in advance on the date of issuance of each Letter
of Credit.
(d) General. All fees provided for in this SECTION 5.2 or
elsewhere in the Loan Documents shall be computed on the basis of a year of 360
days and the actual number of days elapsed, and shall be fully earned by the
Administrative Agent, FCC, FSI, the Issuing Bank or the Lenders, as applicable,
when due and payable and, except as otherwise set forth herein or required by
Applicable Law, shall not be subject to refund or rebate. All such fees are
compensation for services and are not, and shall not be deemed to be, interest
or a charge for the use of money.
Section 5.3 Conversion or Continuation of Loans.
Whenever the Borrowers desire, subject to the provisions of SECTION
5.4, to convert an outstanding Loan into a Loan of a different Type provided
for in this Agreement or to continue an outstanding Loan for a subsequent
Interest Period, the Borrowers' Representative shall notify the Administrative
Agent (which notice shall be irrevocable) by telex, telegraph, telecopy or
telephone not later than 12:00 noon on the date one Business Day before the day
on which a proposed conversion of a Loan into, or a continuation of a Loan as a
Base Rate Loan, and three Business Days before the day on which a proposed
conversion of a Loan into, or continuation of a Loan as a LIBOR Loan is to be
effective (and if the Loan to be converted or continued is a LIBOR Loan such
effective date shall be the last day of the Interest Period therefor). Each
such
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notice (a "Notice of Conversion or Continuation") shall (i) identify the Loan
to be converted or continued, including the Type of such Loan, the aggregate
outstanding principal balance thereof and, in the case of a LIBOR Loan, the
last day of the Interest Period therefor, (ii) specify the effective date of
such conversion or continuation, (iii) specify the principal amount of such
Loan to be converted or continued and, if converted, the Type or Types of Loan
into which conversion of such principal amount is to be made, and (iv) in the
case of any conversion into or continuation as a LIBOR Loan, the Interest
Period to be applicable to such converted or continued Loan, and shall be
immediately followed by a written confirmation thereof by the Borrowers'
Representative in substantially the from of Exhibit F hereto, PROVIDED that if
such written confirmation differs in any material respect from the action taken
by the Administrative Agent, the record of the Administrative Agent shall
control absent manifest error.
Section 5.4 Conversion or Continuation. Provided that no Default
or Event of Default shall have occurred and be continuing (but subject to the
provisions of SECTIONS 5.3 and 5.15), the Borrowers may request that all or any
part of any outstanding Loan be converted into a Loan or Loans of a different
Type or be continued as a Loan or Loans of the same Type, in the same aggregate
principal amount, on any Business Day (which, in the case of continuation of a
LIBOR Loan, shall be the last day of the Interest Period applicable to such
Loan), upon notice (which notice shall be irrevocable) given in accordance with
SECTION 5.3, PROVIDED that nothing in this ARTICLE 5 shall be construed to
permit the conversion of a Loan under one Facility into a Loan outstanding
under another Facility.
Section 5.5 Manner of Payment.
(a) Except as otherwise expressly provided in SECTION 9.1(c),
each payment (including prepayments) by the Borrowers on account of the
principal of or interest on the Loans or of any other amounts payable to the
Lenders under this Agreement or any Note shall be made not later than 1:00 p.m.
on the date specified for payment under this Agreement to the Administrative
Agent, for the account of the Lenders, at the Agent's Office, in Dollars, in
immediately available funds and shall be made without any setoff, counterclaim
or deduction whatsoever.
(b) The Borrowers hereby irrevocably authorize each Lender and
each Affiliate of such Lender and each participant herein to charge any account
of the Borrowers maintained with such Lender or such Affiliate or participant
with such amounts as may be necessary from time to time to pay any Secured
Obligations (whether or not owed to such Lender, Affiliate or participant)
which are not paid when due.
Section 5.6 General. If any payment under this Agreement or any
Note shall be specified to be made on a day which is not a Business Day, it
shall be made on the next succeeding day which is a Business Day and such
extension of time shall in such case be included in computing interest, if any,
in connection with such payment.
Section 5.7 Loan Accounts; Statements of Account.
(a) Each Lender shall open and maintain on its books a loan
account in ▇▇▇▇▇▇▇'▇ name (each, a "Loan Account" and collectively, the "Loan
Accounts"). Each such Loan
55
Account shall show as debits thereto each Loan made under this Agreement by
such Lender to the Borrowers and as credits thereto all payments received by
such Lender and applied to principal of such Loans, so that the balance of the
Loan Account at all times reflects the principal amount due such Lender from
the Borrowers.
(b) The Administrative Agent shall maintain on its books a
control account for the Borrowers in which shall be recorded (i) the amount of
each disbursement made hereunder, (ii) the amount of any principal or interest
due or to become due from the Borrowers hereunder, and (iii) the amount of any
sum received by the Administrative Agent hereunder from the Borrowers and each
Lender's share therein.
(c) The entries made in the accounts pursuant to SUBSECTIONS (a)
and (b) shall be prima facie evidence, in the absence of manifest error, of the
existence and amounts of the obligations of the Borrowers therein recorded and
in case of discrepancy between such accounts, in the absence of manifest error,
the accounts maintained pursuant to SUBSECTION (b) shall be controlling.
(d) The Administrative Agent will account separately to the
Borrowers monthly with a statement of Loans, charges and payments made to and
by the Borrowers pursuant to this Agreement, and such accounts rendered by the
Administrative Agent shall be deemed final, binding and conclusive, save for
manifest error, unless the Administrative Agent is notified by the Borrowers in
writing to the contrary within 30 days after the date the account to the
Borrowers was so rendered. Such notice by the Borrowers shall be deemed an
objection to only those items specifically objected to therein. Failure of the
Administrative Agent to render such account shall in no way affect the rights
of the Administrative Agent or of the Lenders hereunder.
Section 5.8 Reduction of Revolving Credit Facility; Termination
of Agreement.
(a) Reduction of Revolving Credit Facility.
(i) The Borrowers shall have the right, at any time and
from time to time, upon at least five Business Days' prior
irrevocable, written notice to the Administrative Agent, to terminate
or reduce permanently all or a portion of the Revolving Credit
Facility, without premium or penalty; PROVIDED, HOWEVER, that any such
partial reduction of such facility shall be not less than $1,000,000
or a larger integral multiple thereof and shall not reduce the
Revolving Credit Facility below the amount of the aggregate Letter of
Credit Obligations. As of the date of termination or reduction set
forth in such notice, the Revolving Credit Facility shall be
permanently reduced to the amount stated in the Borrowers' notice for
all purposes herein, and the Borrowers shall pay the amount necessary
to reduce the amount of the aggregate outstanding Revolving Credit
Loans, Swingline Loans and Letter of Credit Obligations to an amount
not greater than the Revolving Credit Facility as so reduced, together
with accrued interest on the amounts so prepaid and any amount payable
pursuant to SECTION 5.11.
(ii) The amount of the Revolving Credit Facility shall be
automatically reduced to zero on the Termination Date.
56
(iii) The Revolving Credit Facility or any portion thereof
terminated or reduced pursuant to this SECTION 5.8 may not be
reinstated.
(b) Termination of Agreement. The Borrowers shall have the right,
at any time, to terminate this Agreement upon not less than 15 Business Days'
prior written notice, which notice shall specify the effective date of such
termination. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender thereof. On the date specified in such notice, such
termination shall be effected, PROVIDED, that the Borrowers shall, on or prior
to such date, pay to the Administrative Agent, for its account and the Ratable
account of the Lenders, in same day funds, an amount equal to all Secured
Obligations (other than with respect to Letter of Credit Obligations)
outstanding on such date, including, without limitation, all (i) accrued
interest thereon, (ii) all accrued fees provided for hereunder, (iii) any
amounts payable to the Lenders pursuant to SECTIONS 5.12, 5.15, 16.2, 16.3,
16.14 and 16.23, and (iv) if such termination occurs prior to the first
Anniversary a termination fee equal to 1% of the sum of the Revolving Credit
Facility plus the outstanding principal amount of the Term Loan on the
Termination Date, and, in addition thereto, shall deliver to the Administrative
Agent, in respect of each outstanding Letter of Credit, either a Supporting
Letter of Credit or Cash Collateral as provided in SECTION 3.9. Additionally,
the Borrowers shall provide the Administrative Agent and the Lenders with
indemnification in form and substance satisfactory to the Administrative Agent
with respect to such customary matters as the Administrative Agent and the
Lenders shall require. Following a notice of termination as provided for in
this SECTION 5.8(b) and upon payment in full of the amounts specified in this
SECTION 5.8(b), provision for each Letter of Credit, and execution and delivery
of any required indemnification, this Agreement shall be terminated and the
Administrative Agent, the Lenders and the Borrowers shall have no further
obligations to any other party hereto, except for the obligations to the
Administrative Agent and the Lenders pursuant to SECTION 16.14 hereof, which
shall survive any termination of this Agreement, and all rights to the
Collateral shall revert to the applicable Loan Party. At the request and sole
expense of the Borrowers following any such termination, the Administrative
Agent shall deliver to the applicable Loan Party any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Loan Party, and
authorize the Loan Parties to file, such documents as they may reasonably
request to evidence such termination.
Section 5.9 Making of Loans.
(a) Nature of Obligations of Lenders to Make Loans. The
obligations of the Lenders under this Agreement to make the Loans are several
and are not joint or joint and several.
(b) Assumption by Administrative Agent. Notwithstanding the
occurrence or continuance of a Default or Event of Default or other failure of
any condition to the making of Loans under the Revolving Credit Facility
hereunder after the Effective Date, unless the Administrative Agent shall have
received notice from a Lender prior to a proposed Borrowing date that such
Lender will not make available to the Administrative Agent such Lender's
Ratable Share of the Loan to be borrowed on such date, the Administrative Agent
may assume that such Lender will make such Ratable Share available to the
Administrative Agent in accordance with SECTION 2.2(a), and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrowers on
such date a corresponding amount. If and to the extent such Lender shall not
make such Ratable Share available to the Administrative Agent, such Lender
57
and the Borrowers severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount, together with interest thereon
for each day from the date such amount is made available to the Borrowers until
the date such amount is repaid to the Administrative Agent at the Effective
Interest Rate or, if lower, subject to SECTION 5.1(f), the Maximum Rate (or as
to the Lenders, at the Federal Funds Rate for the first three days after the
date such amount is made available to the Borrowers and thereafter at the
Effective Interest Rate or, if lower, subject to SECTION 5.1(f), the Maximum
Rate). If such Lender shall repay to the Administrative Agent such
corresponding amount, the amount so repaid shall constitute such Lender's
Ratable Share of the Loan made on such Borrowing date for purposes of this
Agreement. The Administrative Agent shall not be required to make any Loan as
to which it shall have received notice from a Lender of such Lender's intention
not to make its Ratable Share of such Loan available to the Administrative
Agent. The failure of any Lender to make its Ratable Share of any Loan
available shall not (without regard to whether a Borrower shall have returned
the amount thereof to the Administrative Agent in accordance with this SECTION
5.9) relieve it or any other Lender of its obligation, if any, hereunder to
make its Ratable Share of the Loan available on such Borrowing date, but no
Lender shall be responsible for the failure of any other Lender to make its
Ratable Share of a Loan available on the Borrowing date.
(c) Delegation of Authority to Administrative Agent. Without
limiting the generality of SECTION 15.1, each Lender expressly authorizes the
Administrative Agent to determine on behalf of such Lender (i) any reduction or
increase of advance rates applicable to the Borrowing Base, so long as such
advance rates do not at any time exceed the rates set forth in the Borrowing
Base definition as in effect on the Agreement Date, (ii) any adjustment of the
Dilution Reserve or the Royalty Reserve desirable in the Administrative Agent's
reasonable credit judgment, (iii) the creation or elimination of any other
reserves (other than the Letter of Credit Reserve) against the Revolving Credit
Facility and the Borrowing Base and (iv) whether or not Inventory or Accounts
shall be deemed to constitute Eligible Inventory or Eligible Accounts. The
Administrative Agent is further authorized subject to the applicable provisions
of SECTION 16.11 to subordinate the Security Interest in specific items of
Equipment to the interest of the owner/lessor thereof or to the Lien of the
holder of a Permitted Purchase Money Lien with respect thereto. Any withdrawal
of authorization under this SECTION 5.9(c) shall not affect the validity of any
Loans made prior to the effectiveness thereof.
(d) Replacement of Certain Lenders. If a Lender (i) shall have
failed to fund its Ratable Share of any Loan requested by the Borrowers which
such Lender is obligated to fund under the terms of this Agreement and which
failure has not been cured or (ii) shall have failed or refused to approve any
action described in SECTION 16.11(b)(1) which has been approved by Lenders
whose Facility Percentages equal at least 75%, then, in any such case and in
addition to any other rights and remedies that the Administrative Agent, any
other Lender or the Borrowers may have against such Affected Lender, the
Borrowers or the Administrative Agent may make written demand on such Affected
Lender (with a copy to the Administrative Agent in the case of a demand by the
Borrowers and a copy to the Borrowers in the case of a demand by the
Administrative Agent) for the Affected Lender to assign, and such Affected
Lender shall assign pursuant to one or more duly executed Assignments and
Acceptances within five Business Days after the date of such demand, to one or
more Lenders willing to accept such assignment or assignments, or to one or
more Eligible Assignees designated by the Administrative Agent, and reasonably
acceptable to the Borrowers, all of such Affected Lender's rights and
obligations
58
under this Agreement (including its Commitments and all Loans owing to it) in
accordance with the provisions of SECTION 5.15(c) (other than clauses (i), (vi)
and (vii) thereof and any other provisions relating solely to increased costs)
and ARTICLE 14, PROVIDED that all Lenders that have withheld approval (as
described in CLAUSE (II) above) have such demand made upon them. The
Administrative Agent is hereby irrevocably authorized to execute one or more
Assignments and Acceptances as attorney-in-fact for any Affected Lender which
fails or refuses to execute and deliver the same within five Business Days
after the date of such demand. The Affected Lender shall be entitled to
receive, in cash and concurrently with execution and delivery of each such
Assignment and Acceptance, all amounts owed to the Affected Lender hereunder or
under any other Loan Document that are the subject of such Assignment and
Acceptance, including the aggregate outstanding principal amount of the Loans
owed to such Lender, together with accrued interest thereon through the date of
such assignment. Upon the replacement of any Affected Lender pursuant to this
SECTION 5.9(d), such Affected Lender shall cease to have any participation in,
entitlement to, or other right to share in the Security Interest or any other
Lien of the Administrative Agent in any Collateral or Real Estate and such
Affected Lender shall have no further liability to the Administrative Agent,
any Lender or any other Person under any of the Loan Documents (except as
provided in SECTION 15.7 and elsewhere in this Agreement as to events or
transactions which occur prior to the replacement of such Affected Lender).
(e) Overadvances. Notwithstanding anything to the contrary
contained elsewhere in this SECTION 5.9 or this Agreement or the other Loan
Documents and whether or not a Default or Event of Default exists at the time,
the Administrative Agent may in its discretion require all Lenders to honor
requests or deemed requests by the Borrowers for Revolving Credit Loans at a
time that an Overadvance Condition exists or which would result in an
Overadvance Condition and each Lender shall be obligated to continue to make
its Ratable Share of Revolving Credit Loans up to a maximum amount outstanding
equal to (but not exceeding) its Commitment, so long as the total amount of
such Overadvance is not known by the Administrative Agent to exceed $10,000,000
and an Overadvance Condition has not existed for more than 10 consecutive days
or more than 30 Business Days in any Fiscal Year.
Section 5.10 Settlement Among Lenders.
(a) Term Loans. The Administrative Agent shall pay to each Lender
on each date on which a payment of interest on or principal of the Term Loans
is received by the Administrative Agent, such Lender's Ratable Share (or, if
different, a proportionate amount based on the principal amount of the Term
Loans owing to such Lender), of all payments received by the Administrative
Agent hereunder in funds of the same type received, net of any amounts payable
by such Lender to the Administrative Agent, by wire transfer.
(b) Revolving Credit Loans. The Administrative Agent shall pay to
each Lender on each date on which a payment of interest on or principal of the
Revolving Credit Loans is received by the Administrative Agent, such Lender's
Ratable Share (or, if different, a proportionate amount based on the principal
amount of Revolving Credit Loans owing to such Lender), of all payments
received by the Administrative Agent hereunder in funds of the same type
received, net of any amounts payable by such Lender to the Administrative
Agent, by wire transfer.
59
(c) Return of Payments. If any amounts received by FCC in respect
of the Secured Obligations are later required to be returned or repaid by FCC
to the Borrowers or any other obligor or their respective representatives or
successors in interest, whether by court order, settlement or otherwise, in
excess of the FCC's Ratable Share of all such amounts required to be returned
by all Lenders, each other Lender shall, upon demand by FCC with notice to the
Administrative Agent, pay to the Administrative Agent for the account of FCC,
an amount equal to the excess of such Lender's Ratable Share of all such
amounts required to be returned by all Lenders over the amount, if any,
returned directly by such Lender.
(d) Payments to Administrative Agent, Lenders.
(i) Payment by any Lender to the Administrative Agent
shall be made not later than 12:00 noon on the Business Day such
payment is due, PROVIDED that if such payment is due on demand by the
Swingline Lender, such demand is made on the paying Lender not later
than 10:30 a.m. on such Business Day. Payment by the Administrative
Agent to any Lender shall be made by wire transfer, promptly following
the Administrative Agent's receipt of funds for the account of such
Lender and in the type of funds received by the Administrative Agent,
PROVIDED that if the Administrative Agent receives such funds (A) at
or prior to 12:00 noon, the Administrative Agent shall pay such funds
to such Lender by 2:00 p.m. on such Business Day or (B) after 12:00
noon, the Administrative Agent shall pay such funds to such Lender
prior to 2:00 p.m. on the following Business Day. If a demand for
payment is made after the applicable time set forth above, the payment
due may be made by 2:00 p.m. on the first Business Day following the
date of such demand.
(ii) If a Lender shall at any time fail to make any
payment to the Administrative Agent required hereunder, the
Administrative Agent may, but shall not be required to, retain
payments that would otherwise be made to such Lender hereunder and
apply such payments to such Lender's defaulted obligations hereunder,
at such time, and in such order, as the Administrative Agent may elect
in its sole discretion.
(iii) With respect to the payment of any funds under this
SECTION 5.10(d), whether from the Administrative Agent to a Lender or
from a Lender to the Administrative Agent, the party failing to make
full payment when due pursuant to the terms hereof shall, upon demand
by the other party, pay such amount together with interest on such
amount at the Federal Funds Rate for the period of such default.
(e) Settlement of Other Secured Obligations. All other amounts
received by the Administrative Agent on account of, or applied by the
Administrative Agent to the payment of, any Secured Obligation owed to the
Lenders (including, without limitation, fees payable to the Lenders pursuant to
SECTIONS 5.2(b) and (c) and proceeds from the sale of, or other realization
upon, all or any part of the Collateral following an Event of Default) that are
received by the Administrative Agent on or prior to 12:00 noon on a Business
Day will be paid by the Administrative Agent to each Lender on the same
Business Day, and any such amounts that are received by the Administrative
Agent after 12:00 noon will be paid by the Administrative Agent to each Lender
on the following Business Day. Unless otherwise stated herein, the
Administrative Agent shall distribute to each Lender such Lender's Ratable
Share of fees
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payable to the Lenders pursuant to SECTIONS 5.2(B) and (C) and shall distribute
to each Lender such Lender's Ratable Share (or if different, such Lender's
proportionate share based upon the amount of the Secured Obligations then owing
to each Lender) of the proceeds from the sale of, or other realization upon,
all or any part of the Collateral following an Event of Default.
(f) Allocation of Payments from Borrowers. All monies to be
applied to the Secured Obligations, whether such monies represent voluntary
payments by the Borrowers or are received pursuant to demand for payment or
realized from any disposition of Collateral, shall be allocated among the
Administrative Agent and such of the Lenders and other holders of the Secured
Obligations as are entitled thereto (and, with respect to monies allocated to
the Lenders, on a Ratable basis unless otherwise provided in this SECTION
5.10(f)): (i) first, to the Administrative Agent to pay the amount of expenses
that have not been reimbursed to the Administrative Agent by the Borrowers or
the Lenders, together with interest accrued thereon; (ii) second, to the
Administrative Agent to pay any indemnified amount that has not been paid to
the Administrative Agent by the Borrowers or the Lenders, together with
interest accrued thereon; (iii) third, to the Administrative Agent to pay any
fees due and payable to the Administrative Agent under this Agreement; (iv)
fourth, to the Lenders for any indemnified amount that they have paid to the
Administrative Agent and for any expenses that they have reimbursed to the
Administrative Agent; (v) fifth, to the Swingline Lender to pay any outstanding
Swingline Loans together with accrued interest thereon; (vi) sixth, to the
Lenders to pay any fees due and payable to all Lenders under this Agreement;
(vii) seventh, to the Lenders in payment of (x) the Letter of Credit
Obligations, (including by depositing Cash Collateral with the Administrative
Agent pursuant to SECTION 3.9, and (y) the unpaid principal and accrued
interest in respect of the Loans to be shared among Lenders on the basis of
their respective Facility Percentages, (viii) eighth, to the Lenders and their
respective Affiliates in payment of any other Secured Obligations then
outstanding and held by any Lender or an Affiliate of any Lender to be shared
among the Lenders and their respective Affiliates on a pro rata basis according
to the outstanding Secured Obligations then owing to each Lender and each
Affiliate of a Lender expressed as a percentage of the outstanding Secured
Obligations then owing to all Lenders and their respective Affiliates, or on
such other basis as may be agreed upon in writing by all of the Lenders (which
agreement or agreements may be entered into without notice to or the consent or
approval of the Borrowers); and (ix) ninth, to the holders of the other Secured
Obligations who are not Lenders or Affiliates of Lenders on a pro rata basis.
The allocations set forth in this SECTION 5.10(f) are solely to determine the
rights and priorities of the Administrative Agent and the Lenders as among
themselves and may be changed by the Administrative Agent and the Lenders
without notice or the consent or approval of the Borrowers or any other Person.
(g) Voluntary Prepayment of Term Loan. The Borrowers shall have
the right at any time and from time to time, upon at least two Business Days'
prior written notice by the Borrowers to the Administrative Agent, to prepay,
without premium or penalty, the Term Loan in whole or in part on any Business
Day. Each partial prepayment shall be in a principal amount of not less than
$500,000 or in a integral multiple of $100,000 in excess thereof. On the
prepayment date, the Borrowers shall pay interest on the amount prepaid,
accrued to the prepayment date. Any notice of prepayment given by the
Borrowers' Representative hereunder shall be irrevocable, and the amount to be
prepaid (including accrued interest and any amount payable pursuant to SECTION
5.12) shall be due and payable on the date designated in the notice.
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Each prepayment of the Term Loan pursuant to this SECTION 5.10(G) shall be
applied to the outstanding principal amount of the Term Loan ratably as to the
remaining installments thereof.
(h) Mandatory Prepayments.
(i) Disposition Proceeds; Debt Issues. The Borrowers
shall prepay the Loans from time to time as follows:
(A) Asset Dispositions. Upon receipt by the
Borrowers or any Subsidiary of the Net Proceeds of any Asset
Dispositions in excess of $500,000 in the aggregate in any
Fiscal Year the Borrowers shall apply such Net Proceeds to
prepay the Loans as provided in SECTION 5.10(i).
(B) Debt Offerings. In the event that at any
time after the Effective Date, a Borrower or any U.S.
Subsidiary issues Debt securities (other than Senior Notes)
in a public offering or private placement pursuant to Rule
144A of the SEC or otherwise pursuant to a private placement
of notes (in each case other than Debt incurred pursuant to a
Qualifying Refinancing), then no later than the third
Business Day following the date of receipt of such proceeds,
100% of such proceeds, net of underwriting discounts and
commissions and other reasonable costs associated therewith
shall be applied to prepay the Loans as provided in SECTION
5.10(i).
(C) Equity Interests. Except as provided in
SECTION 12.4, in the event that any time after the Effective
Date, a Loan Party issues Equity Interests or receives any
additional capital contribution (other than to or from
another Loan Party) in respect of existing Equity Interests,
then no later than the third Business Day following the date
of receipt of such proceeds, 100% of such proceeds, net of
underwriting discounts and commissions and other reasonable
costs associated therewith, shall be applied as provided in
SECTION 5.10(i).
(ii) Other Prepayments. The Borrowers shall prepay the
Loans (and permanently reduce the Facilities) as provided in SECTION
5.10(i) in an amount equal to any amount (A) that would otherwise be
required to be applied to the purchase, redemption, repayment or
prepayment of any Debt other than the Loans, including, without being
limited to, pursuant to Section 3.7(b) of the Senior Note Indenture or
(B) as may be necessary after giving effect to any fixed assets
dispositions, to maintain the outstanding Term Loan at an amount not
greater than the formula set forth in the definition "Term Loan
Facility" (after taking into account the value of any additional
Equipment or Real Estate Collateral provided).
(i) Application of Prepayments.
(A) Net Proceeds of Assets Held for Sale. Any
Net Proceeds of dispositions of Assets Held for Sale or any
sales or factoring of Accounts contemplated by SECTION
12.7(f) shall be applied to repay outstanding Swingline Loans
and then to outstanding Revolving Credit Loans, but without
any reduction in Commitments.
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(B) Net Proceeds of Assets other than Assets
Held For Sale. At least 50% of the Net Proceeds of Asset
Dispositions other than of Assets Held For Sale shall be
applied (1) first to the outstanding principal amount of the
Term Loans ratably as to the remaining installments thereof
to the extent of such Loans and (2) any balance of such Net
Proceeds shall be applied to repay outstanding Swingline
Loans and then Revolving Credit Loans, without any reduction
in Commitments.
(C) Other Amounts. Any prepayment amounts
(other than those described in the foregoing SECTIONS
5.10(i)(a) and (b) shall be applied first to the outstanding
principal amount of the Term Loans ratably as to the
remaining installments thereof to the extent of such Loans.
After all Term Loans have been repaid, any such other
amounts, and any amounts under SECTION 5.10(h)(i)(c), shall
be applied to repay outstanding Swingline Loans and then to
outstanding Revolving Credit Loans, but without any reduction
in Commitments.
Any payments received which would otherwise result in prepayment of LIBOR Loans
prior to the end of the Interest Period applicable thereto may, upon the
request of the Borrowers, in the absence of an Event of Default, be deposited
to the Cash Collateral Account or any Investment Account, with any excess after
prepayment in full of the Loans to be deposited with the Administrative Agent
to be held as Cash Collateral for the Secured Obligations and after the
Termination Date, to be applied to any of the Secured Obligations in such
manner as the Administrative Agent shall determine in its sole discretion.
Notwithstanding any provision of this SECTION 5.10(i) to the contrary, any
prepayment pursuant to SECTION 5.10(h)(ii) shall result in a permanent
reduction in Loans (and Commitments therefor).
(j) Certificate. Together with each prepayment pursuant to
SECTION 5.10(h), the Borrowers shall deliver to the Administrative Agent a
certificate of a Financial Officer setting forth the amount of such prepayment
and certifying that such amount was computed in accordance with the provisions
of this Agreement, and having attached thereto the supporting calculations, in
reasonable detail.
Section 5.11 Payments Not at End of Interest Period; Failure to
Borrow. If for any reason any payment of principal with respect to any LIBOR
Loan is made on any day prior to the last day of the Interest Period applicable
to such LIBOR Loan or, after having given a Notice of Borrowing with respect to
any LIBOR Revolving Credit Loan or a Notice of Conversion or Continuation with
respect to any Loan to be continued as or converted into a LIBOR Loan, such
Loan is not made or is not continued as or converted into a LIBOR Loan due to
the Borrowers' failure to borrow or to fulfill the applicable conditions set
forth in ARTICLE 6, the Borrowers shall pay to each Lender an amount equal to
such Lender's costs and expenses incurred as a result of such failure,
including in connection with obtaining deposits to fund its Ratable Share of
such new (or continued or converted) Loan and redeploying such deposits. The
Borrowers shall pay such amount upon presentation by the Administrative Agent
of a statement setting forth the amount and the applicable Lender's calculation
thereof in reasonable detail, which statement shall be deemed true and correct
absent manifest error.
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Section 5.12 Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to the Lenders under this ARTICLE 5 shall be
made as though each Lender had actually funded or committed to fund its LIBOR
Loans through the purchase of an underlying deposit in an amount equal to the
amount of such Ratable share and having a maturity comparable to the relevant
Interest Period for such LIBOR Loan; PROVIDED, HOWEVER, each Lender may fund
its LIBOR Loans in any manner it deems fit and the foregoing assumption shall
be utilized only for the calculation of amounts payable under this ARTICLE 5.
Section 5.13 Duration of Interest Periods; Maximum Number of LIBOR
Loans; Minimum Increments; Option to Forgo Notes.
(a) Subject to the provisions of the definition "Interest
Period", the duration of each Interest Period applicable to a LIBOR Loan shall
be as specified in the applicable Notice of Borrowing or Notice of Conversion
or Continuation. The Borrowers may elect a subsequent Interest Period to be
applicable to any LIBOR Loan by giving a Notice of Conversion or Continuation
with respect to such Loan in accordance with SECTION 5.4.
(b) If the Administrative Agent does not receive a notice of
election in accordance with SECTION 5.4 with respect to the continuation of a
LIBOR Loan within the applicable time limits specified in said SECTION 5.4, or
if, when such notice must be given, an Event of Default exists or LIBOR Loans
are not available, the Borrowers shall be deemed to have elected to convert
such LIBOR Loan in whole into a Base Rate Loan on the last day of the Interest
Period therefor.
(c) Notwithstanding the foregoing, the Borrowers may not select
an Interest Period that would end, but for the provisions of the definition
"Interest Period," after the Termination Date.
(d) In no event shall there be more than seven LIBOR Loans
outstanding hereunder at any time. For the purpose of this SUBSECTION (d), each
LIBOR Loan having a distinct Interest Period shall be deemed to be a separate
Loan hereunder.
(e) Each LIBOR Loan shall be in an amount of $1,000,000 or an
integral multiple of $100,000 in excess thereof.
(f) Any Lender may elect, by notice to the Administrative Agent
prior to the Effective Date or as provided in any Assignment and Acceptance
Agreement, not to receive Notes evidencing its Loans and to rely exclusively on
the provisions of SECTION 5.7, PROVIDED that upon any such Lender's request,
and subject to such reasonable notice and other requirements as the
Administrative Agent may impose, the Borrowers shall execute and deliver Notes
in conformity with the provisions of SECTIONS 2.4 and 4.4.
Section 5.14 Changed Circumstances.
(a) If the introduction of or any change in or in the
interpretation of (in each case, after the date hereof) any law or regulation
makes it unlawful, or any Governmental Authority asserts, after the date
hereof, that it is unlawful, for any Lender to perform its obligations
hereunder to make LIBOR Loans or to fund or maintain LIBOR Loans hereunder,
such Lender
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shall notify the Administrative Agent of such event and the Administrative
Agent shall notify the Borrowers of such event, and the right of the Borrowers
to select a LIBOR Loan for any subsequent Interest Period or in connection with
any subsequent conversion of any Loan shall be suspended until the
Administrative Agent shall notify the Borrowers that the circumstances causing
such suspension no longer exist, and the Borrowers shall forthwith prepay in
full all LIBOR Revolving Credit Loans and shall convert each LIBOR Term Loan
into a Base Rate Term Loan, and shall pay all interest accrued thereon through
the date of such prepayment or conversion, unless the Borrowers, within three
Business Days after such notice from the Administrative Agent, request the
conversion of all LIBOR Loans then outstanding into Base Rate Loans; PROVIDED,
that if the date of such repayment or proposed conversion is not the last day
of the Interest Period applicable to any such LIBOR Loan, the Borrowers shall
also pay any amount due pursuant to SECTION 5.11.
(b) If the Administrative Agent shall, at least one Business Day
before the date of any requested Loan or the effective date of any conversion
or continuation of an existing Loan to be made or continued as or converted
into a LIBOR Loan (each such requested Loan and Loan to be converted or
continued, a "Pending Loan"), notify the Borrowers that LIBOR will not
adequately reflect the cost to the Lenders of making or funding such Pending
Loan as a LIBOR Loan or that LIBOR is not determinable from any interest rate
reporting service of recognized standing, then the right of the Borrowers to
select a LIBOR Loan for such Pending Loan, any subsequent requested Loan or in
connection with any subsequent conversion or continuation of any Loan shall be
suspended until the Administrative Agent shall notify the Borrowers that the
circumstances causing such suspension no longer exist, and each Pending Loan
and each such subsequent Loan requested to be made, continued or converted
shall be made or continued as or converted into a Base Rate Loan.
(c) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve requirements
included in the LIBOR Reserve Percentage) in or in the interpretation of, in
each case after the date hereof, any law or regulation (except to the extent
such introduction, change or interpretation affects taxes measured by net
income), or (ii) the compliance with any guideline or request (except to the
extent such guideline or request affects taxes measured by net income) from any
central bank or other governmental authority (whether or not having the force
of law) made after the date hereof, there shall be any increase in the cost to
any Lender of agreeing to make or making, funding or maintaining LIBOR Loans
(other than as separately provided for in SECTION 5.14(d)), then the Borrowers
shall from time to time, within 30 days after demand by such Lender (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost or convert the Borrowing of
which such LIBOR Loan is a part to Base Rate Loans and pay to the
Administrative Agent, for the account of such Lender, the amount due pursuant
to SECTION 5.11.
(d) If (i) the adoption of or change in, after the date hereof,
any law, rule, regulation or guideline regarding capital requirements for banks
or bank holding companies, or any change, after the date hereof, in the
interpretation or application thereof by any governmental authority charged
with the interpretation or administration thereof, or (ii) compliance by such
Lender with any guideline, request or directive, made or promulgated after the
date hereof, of any such entity regarding capital adequacy (whether or not
having the force of law), has the effect of reducing
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the return on a Lender's capital as a consequence of its maintaining its Loans
or commitment to make Revolving Credit Loans hereunder to a level below that
which such Lender could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming the full utilization of such Lender's capital immediately before such
adoption, change or compliance) or if any change in law, regulation, treaty or
official directive or the interpretation or application thereof by any court or
by any governmental authority charged with the administration thereof or the
compliance with any guideline or request of any central bank or other
governmental authority (whether or not having the force of law) subjects a
Lender to any tax with respect to payments of principal or interest or any
other amounts payable hereunder by the Borrowers or otherwise with respect to
the transactions contemplated hereby (except for taxes on the overall net
income of such Lender imposed by the United States of America or any political
subdivision thereof), in each case by any amount deemed by such Lender to be
material, then such Lender shall promptly after its determination of such
occurrence notify the Borrowers and the Administrative Agent thereof. The
Borrowers agree to pay to the Administrative Agent, for the account of such
Lender, as an additional fee from time to time, within 30 days after demand by
such Lender, such amount as such Lender certifies to be the amount that will
compensate it for such reduction.
(e) Before giving any notice pursuant to SECTION 5.14(a) or
making any demand pursuant to SECTION 5.14(c) or (d), each Lender agrees to use
its best efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different lending office if the making of such a
designation would avoid the need for such notice or demand, or reduce the
amount of such increased cost or reduction in return and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
(f) A certificate of the Lender claiming compensation and
accompanying or constituting the "demand" contemplated by SECTION 5.14(c) or
(d) shall be conclusive in the absence of manifest error. Each such certificate
shall set forth the nature of the occurrence giving rise to such claim for
compensation, the additional amount or amounts to be paid to the Lender
hereunder and the method by which such amounts were determined. In determining
such amounts, a Lender may use any reasonable averaging and attribution
methods.
(g) In no event shall a Lender claim or the Borrowers be liable
to pay any amounts pursuant to SECTION 5.14(c) or (d) attributable to periods
more than 90 days prior to the date of the first demand for such amount,
delivered in accordance with the provisions hereof.
Section 5.15 Net Payments.
(a) No Reduction for Taxes. All payments by the Borrowers
hereunder to or for the benefit of any Lender or the Administrative Agent shall
be made without setoff, counterclaim or other defense. Except as required by
law or as provided in SECTION 5.15(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments, or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (excluding any tax imposed on or measured by the net income or profits
of such Lender or the Administrative Agent, as the case may be together with
66
all interest, penalties or similar liabilities with respect thereto
(collectively, "Covered Taxes"). Except as provided in SECTION 5.15(b), if the
Borrowers shall be required by law to deduct or withhold any Covered Taxes from
any sum payable hereunder to any Lender or the Administrative Agent, (A) the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings of Covered Taxes (including deductions or
withholdings of Covered Taxes applicable to additional sums payable under this
SECTION 5.15(a)) such Lender or the Administrative Agent, as the case may be,
receives an amount equal to the sum it would have received had such deductions
or withholdings not been made, (B) the Borrowers shall make such deductions or
withholdings, and (C) the Borrowers shall pay the full amount so deducted or
withheld to the relevant taxing authority or other authority in accordance with
Applicable Law. The Borrowers shall furnish to the Administrative Agent within
45 days after the date on which the payment of any Covered Taxes is due
certified copies of tax receipts evidencing such payment by the Borrowers.
Except as provided in SECTION 5.15(b), the Borrowers agree to indemnify and
hold harmless the Lenders and the Administrative Agent and reimburse each of
them, as the case may be, for the amount of any Covered Taxes that are levied
against or imposed on the Lenders or the Administrative Agent and that are paid
by the Lenders or the Administrative Agent, as the case may be.
(b) Foreign Lenders.
(i) Each Foreign Lender shall deliver to the
Administrative Agent and the Borrowers (A) two valid, duly completed
copies of IRS Form W-8BEN or Form W-8ECI or applicable successor form,
as the case may be, and any other required form, certifying in each
case that such Foreign Lender is entitled to receive payments under
this Agreement or the Note(s) payable to it without deduction or
withholding of any United States federal income taxes or, in the case
of a Foreign Lender claiming exemption from withholding under Section
871(b) or 881(c) of the Code, a certificate to such effect and a
valid, duly completed IRS Form W-8BEN or applicable successor form, to
establish an exemption from United States backup withholding tax. Each
such Foreign Lender shall also deliver to the Administrative Agent and
the Borrowers such forms, or other manner of required certification,
on or before the date that any such form expires or becomes obsolete
or otherwise is required to be resubmitted as a condition to obtaining
an exemption from a required withholding of United States federal
income tax or after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrowers and
the Administrative Agent, and such extensions or renewals thereof as
may reasonably be requested by the Borrowers and the Administrative
Agent.
(ii) If the forms provided by a Foreign Lender under
SECTION 5.15(b)(i) at the time such Foreign Lender first becomes a
party to this Agreement indicate that such Foreign Lender is subject
to a rate of United States withholding tax in excess of zero, then
withholding tax at such rate shall be considered excluded from Covered
Taxes unless and until such Foreign Lender provides the appropriate
forms certifying that a lesser rate of withholding applies, whereupon
withholding tax at such lesser rate only shall be excluded from
Covered Taxes for period governed by such forms.
(iii) For any period with respect to which a Foreign
Lender has failed to provide the Borrowers with the appropriate forms
described in SECTION 5.15(b)(i), such
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Foreign Lender shall not be entitled to indemnification under SECTION
5.15(a) with respect to Covered Taxes imposed by the United States by
reason of such failure.
(c) Affected Lenders. If the Borrowers are obligated to pay to
any Lender any amount under SECTION 5.14 or this SECTION 5.15, the Borrowers
may, if no Default or Event of Default then exists, replace such Lender with
another lender acceptable to the Administrative Agent, and such Lender hereby
agrees to be so replaced subject to the following:
(i) The obligations of the Borrowers hereunder to the
Lender to be replaced (including such increased or additional costs
incurred from the date of notice to the Borrowers of such increase or
additional costs through the date such Lender is replaced hereunder)
shall be paid in full to such Lender concurrently with such
replacement;
(ii) The replacement Lender shall be a bank or other
financial institution that is not subject to the increased costs which
caused the Borrowers' election to replace any Lender hereunder, and
each such replacement Lender shall execute and deliver to the
Administrative Agent such documentation satisfactory to the
Administrative Agent pursuant to which such replacement Lender is to
become a party hereto, conforming to the provisions of SECTION 14.1
hereof, with a Commitment equal to that of the Lender being replaced
and shall make Revolving Credit Loans in the aggregate principal
amount equal to the aggregate outstanding principal amount of the
Revolving Credit Loans of the Lender being replaced;
(iii) Upon such execution of such documents referred to in
CLAUSE (ii) and repayment of the amounts referred to in CLAUSE (i),
the replacement Lender shall be a "Lender" with a Commitment as
specified hereinabove and the Lender being replaced shall cease to be
a "Lender" hereunder, except with respect to indemnification
provisions under this Agreement, which shall survive as to such
replaced Lender;
(iv) The Administrative Agent shall reasonably cooperate
in effectuating the replacement of any Lender under this SECTION 5.15,
but at no time shall the Administrative Agent be obligated to initiate
any such replacement;
(v) Any Lender replaced under this SECTION 5.15 shall be
replaced at the Borrowers' sole cost and expense and at no cost or
expense to the Administrative Agent or any of the Lenders; and
(vi) If the Borrowers propose to replace any Lender
pursuant to this SECTION 5.15 because the Lender seeks reimbursement
hereunder, then the Borrowers must also replace any other Lender who
seeks similar levels of reimbursement (as a percentage of such
Lender's Commitment) under such Sections.
(vii) Each Lender agrees that to the extent requested by
▇▇▇▇▇▇▇ and not inconsistent with such Lender's internal policies,
such Lender shall use reasonable efforts and take such actions as are
reasonably appropriate if as a result thereof the additional fees or
amounts which would otherwise be required to be paid to such Lender
pursuant to SECTION 5.14 or 5.15 would be materially reduced, or the
illegality or other adverse circumstances which would otherwise
require a conversion of such Loans would cease to
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exist, and in each case, if as determined by such Lender in its
discretion, the taking of such actions would not adversely affect such
Lender or the Loans or otherwise be disadvantageous to such Lender. To
the extent practicable and applicable, each Lender shall allocate such
cost increases among its customers in good faith and on an equitable
basis.
Section 5.16 Cash Collateral Account; Investment Accounts.
(a) Cash Collateral Account. The Borrowers shall establish a Cash
Collateral Account in which to deposit Collateral consisting of cash or Cash
Equivalents from time to time:
(i) representing payments received pursuant to SECTION
2.3(b), 5.11 or 9.1 in excess of then outstanding Revolving Credit
Loans or on account of LIBOR Loans which would otherwise result in
repayment of such Loans prior to the end of the Interest Period
applicable thereto,
(ii) with respect to Letter of Credit Obligations (x) at
the request of the Administrative Agent upon the occurrence of an
Event of Default, or (y) for the purposes set forth in SECTION 5.8 in
the event of termination of this Agreement, or
(iii) for any other purpose appropriate under this
Agreement to provide security for the Secured Obligations.
On the last day of the applicable Interest Period as to any amounts deposited
to the Cash Collateral Account pursuant to CLAUSE (i) above or if a drawing
under a Letter of Credit occurs with respect to any amounts deposited to the
Cash Collateral Account pursuant to CLAUSE (ii) above, the Borrowers hereby
authorize the Administrative Agent to use the monies deposited in the Cash
Collateral Account to make payment to the payee(s) with respect to such Loan or
drawing. The Cash Collateral Account shall be in the name of the Administrative
Agent and the Administrative Agent shall have sole dominion and control over,
and sole access to, the Cash Collateral Account. Neither the Borrowers nor any
Person claiming on behalf of or through the Borrowers shall have any right to
withdraw any of the funds held in the Cash Collateral Account. The Borrowers
agree that they will not at any time (x) sell or otherwise dispose of any
interest in the Cash Collateral Account or any funds held therein or (y) create
or permit to exist any Lien upon or with respect to the Cash Collateral Account
or any funds held therein, except as provided in or contemplated by this
Agreement. The Administrative Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Cash Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent
accords other funds deposited with the Administrative Agent, it being
understood that the Administrative Agent shall not have any responsibility for
taking any necessary steps to preserve rights against any parties with respect
to any funds held in the Cash Collateral Account. Subject to the right of the
Administrative Agent to withdraw funds from the Cash Collateral Account as
provided herein, the Administrative Agent will, so long as no Event of Default
shall have occurred and be continuing, from time to time invest funds on
deposit in the Cash Collateral Account, reinvest proceeds of any such
investments which may mature or be sold, and invest interest or other income
received from any such investments, in each case, in Cash Equivalents, as the
Borrowers
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may direct prior to the occurrence of an Event of Default and as the
Administrative Agent may select after the occurrence and during the continuance
of any Event of Default. Such proceeds, interest and income which are not so
invested or reinvested in Cash Equivalents shall be deposited and held by the
Administrative Agent in the Cash Collateral Account. The Administrative Agent
makes no representation or warranty as to, and shall not be responsible for,
the rate of return, if any, earned on any Cash Collateral. Any earnings on Cash
Collateral shall be held as additional Cash Collateral on the terms set forth
in this SECTION 5.16.
(b) Investment Accounts. The Borrowers may from time to time
establish one or more Investment Accounts with the Administrative Agent, any
Lender or any Affiliate of a Lender, for the purpose of investing solely in
cash or Cash Equivalents any Cash Collateral representing payments received
pursuant to SECTION 2.3(b), 5.11 or 9.1 in excess of then outstanding Revolving
Credit Loans or on account of LIBOR Loans which would otherwise result in
repayment of such Loans prior to the end of the Interest Period applicable
thereto. The Borrowers hereby acknowledge and agree that each such Investment
Account shall constitute Collateral hereunder and shall be maintained with the
Administrative Agent, a Lender or an Affiliate of a Lender as security for the
Secured Obligations. Notwithstanding the foregoing, until such time as the
Administrative Agent shall otherwise instruct the Lender or Affiliate of a
Lender maintaining such account, the Borrowers shall be entitled to direct the
investment of the funds deposited therein. The Borrowers shall be liable for
and shall pay any and all income taxes, transaction expenses, capital gains
taxes, and other amounts payable in respect of the maintenance of such accounts
or on investment returns therein. The Borrowers agree that they will not at any
time (x) sell or otherwise dispose of any interest in any Investment Account or
any funds held therein other than by application thereof to any Secured
Obligation, or (y) create or permit to exist any Lien upon or with respect to
any Investment Account or any funds held therein, except as provided in or
contemplated by this Agreement. The Borrowers agree that at any time, and from
time to time, at the expense of the Borrowers, the Borrowers will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Administrative Agent or
any Lender may request, in order to perfect and protect any security interest
in any Investment Account granted or purported to be granted hereby or to
enable the Administrative Agent, for its benefit and the benefit of the
Lenders, to exercise and enforce its rights and remedies hereunder with respect
to such Investment Account.
Section 5.17 Borrowers' Representative. Each other Borrower hereby
irrevocably appoints ▇▇▇▇▇▇▇ as its representative, and ▇▇▇▇▇▇▇ shall act under
this Agreement as the representative of each Borrower for all purposes,
including, without being limited to, requesting borrowings and receiving
account statements and other notices and communications to the Borrowers (or
any of them) from the Administrative Agent or any Lender. The Administrative
Agent and the Lenders may rely, and shall be fully protected in relying, on any
request for borrowing, disbursement instruction, report, information or any
other notice or communication made or given by ▇▇▇▇▇▇▇, whether in its own
name, on behalf of any other Borrower or on behalf of "the Borrowers," and
neither the Administrative Agent nor any Lender shall have any obligation to
make any inquiry or request any confirmation from or on behalf of any other
Borrower as to the binding effect on it of any such request, instruction,
report, information, notice or communication, nor shall the joint and several
character of the Borrowers' liability for the Secured Obligations be affected.
The Administrative Agent and each Lender intend to
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maintain a single Loan Account in the name of "▇▇▇▇▇▇▇ Corporation" hereunder
and each Borrower expressly agrees to such arrangement and confirms that such
arrangement shall have no effect on the joint and several character of its
liability for the Secured Obligations.
Section 5.18 Joint and Several Liability; No Modification or
Release of Obligations.
(a) Joint and Several Liability. The Secured Obligations shall
constitute one joint and several direct and general obligation of all of the
Borrowers. Notwithstanding anything to the contrary contained herein, each of
the Borrowers shall be jointly and severally, with each other Borrower,
directly and unconditionally liable to the Administrative Agent and the Lenders
for all Secured Obligations and shall have the obligations of co-maker with
respect to the Revolving Credit Loans, the Revolving Credit Notes, the Term
Loans, the Term Notes, the Swingline Loans, the Swingline Note and all Secured
Obligations, it being agreed that the advances to each Borrower inure to the
benefit of all Borrowers, and that the Administrative Agent and the Lenders are
relying on the joint and several liability of the Borrowers as co-makers in
extending the Loans hereunder. Each Borrower hereby unconditionally and
irrevocably agrees that upon default in the payment when due (whether at stated
maturity, by acceleration or otherwise) of any principal of, or interest on,
any Revolving Credit Loan, Term Loan, Swingline Loan or other Secured
Obligation payable to the Administrative Agent or any Lender, it will forthwith
pay the same, without notice or demand.
(b) No Modification or Release of Obligations. No payment or
payments made by any of the Borrowers or any other Person or received or
collected by the Administrative Agent or any Lender from any of the Borrowers
or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of
or in payment of the Secured Obligations shall be deemed to modify, release or
otherwise affect the liability of each Borrower under this Agreement, which
shall remain liable for the Secured Obligations until the Secured Obligations
are paid in full and the Revolving Credit Facility is terminated.
Section 5.19 Obligations Absolute. Each Borrower agrees that the
Secured Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any Lender with respect thereto. All Secured
Obligations shall be conclusively presumed to have been created in reliance
hereon. The liabilities under this Agreement shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any provisions of
any Loan Document or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payments of, or in
any other term of, all or any part of the Secured Obligations, or any other
amendment or waiver thereof or any consent to departure therefrom, including,
but not limited to, any increase in the Secured Obligations resulting from the
extension of additional credit to any Borrower or otherwise;
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(c) any taking, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty for all or any of the Secured Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any Borrower; or
(e) any other circumstance (other than payment) which might
otherwise constitute a defense available to, or a discharge of, any Borrower or
a guarantor.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Secured Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Lender upon
the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all
as though such payment had not been made.
Section 5.20 Waiver of Suretyship Defenses. Each Borrower agrees
that the joint and several liability of the Borrowers provided for in SECTION
5.19 shall not be impaired or affected by any modification, supplement,
extension or amendment or any contract or agreement to which the other
Borrowers may hereafter agree (other than an agreement signed by the
Administrative Agent and the Lenders specifically releasing such liability),
nor by any delay, extension of time, renewal, compromise or other indulgence
granted by the Administrative Agent or any Lender with respect to any of the
Secured Obligations, nor by any other agreements or arrangements whatever with
the other Borrowers or with anyone else, each Borrower hereby waiving all
notice of such delay, extension, release, substitution, renewal, compromise or
other indulgence, and hereby consenting to be bound thereby as fully and
effectually as if it had expressly agreed thereto in advance. The liability of
each Borrower is direct and unconditional as to all of the Secured Obligations,
and may be enforced without requiring the Administrative Agent or any Lender
first to resort to any other right, remedy or security. Each Borrower hereby
expressly waives promptness, diligence, notice of acceptance and any other
notice with respect to any of the Secured Obligations, the Revolving Credit
Notes, the Term Notes, the Swingline Note, this Agreement or any other Loan
Document (other than as expressly required in this Agreement or by any of the
Loan Documents) and any requirement that the Administrative Agent or any Lender
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Borrower or any other Person
or any collateral, including any rights any Borrower may otherwise have under
O.C.G.A. ss. 10-7-24.
Section 5.21 Defaulting Lender's Status. Notwithstanding anything
contained herein to the contrary, but in addition to provisions regarding the
failure of a Lender to perform its obligations hereunder set forth elsewhere in
this Agreement, so long as any Lender shall be in default of its obligation to
fund its Ratable Share of any Borrowing or shall have rejected its Commitment
or shall have failed to perform its reimbursement obligations in favor of the
Administrative Agent as set forth in ARTICLE 5 hereof, then such Lender shall
not be entitled to receive any payments of principal of, or interest on, the
Loans or its share of any Unused Commitments, Letter of Credit or other fees
payable hereunder, 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 Commitment shall be deemed to be zero ($0), unless
and until the earlier to occur of (a) all other Secured Obligations have been
paid in full, (b) such
72
failure to fulfill its obligation to fund is cured and such Lender shall have
paid, as and to the extent provided in this Agreement, to the applicable
Person, such amount then owing together with interest on the amount that such
Lender failed to timely fund or (c) the Secured Obligations under this
Agreement shall have been declared or shall have become immediately due and
payable and/or the Revolving Credit Facility have been terminated. No
Commitment of any Lender shall be increased or otherwise affected by any such
failure or rejection by any other Lender. Unless such defaulting Lender cures
any such default prior to the making of any payment by the Borrowers of any
principal or interest hereunder, any such payment which would, but for this
subsection, be paid to such defaulting Lender, shall (to the fullest extent
permitted by Applicable Law) 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 Loans or to provide cash collateral in such
manner and order as shall be determined by the Administrative Agent; PROVIDED,
HOWEVER, that the Administrative Agent may, but shall not be obligated to,
effect a cure of the defaulting Lender's failure to pay money by retaining
payments that would otherwise be made to such defaulting Lender hereunder and
applying such payments to such defaulting Lender's obligations hereunder, at
such time, and in such order as the Administrative Agent may elect in its sole
discretion.
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ARTICLE 6
CONDITIONS PRECEDENT
Section 6.1 Conditions Precedent to Initial Loans.
Notwithstanding any other provision of this Agreement, the respective
obligations of the Lenders to make the Initial Loans are subject to the
conditions precedent that (a) no action, proceeding, investigation, regulation
or legislation, shall have been instituted, threatened or proposed before any
court, governmental agency or legislative body to enjoin, restrain or prohibit,
or to obtain substantial damages in respect of, or which are related to or
arise out of, this Agreement, or the consummation of the transactions
contemplated hereby, (b) there shall not have occurred or exists any event or
series of events or circumstances which individually or in the aggregate, in
the sole judgment of the Administrative Agent or the Arranger, would have a
Materially Adverse Effect, and (c) the Administrative Agent shall have received
on or before the Effective Date the following, each dated as of such day, in
form and substance satisfactory to the Administrative Agent, its special
counsel and the Arranger and (except for the Notes) in sufficient copies for
each Lender:
(1) Agreement. This Agreement, duly executed and
delivered by the Borrowers.
(2) Notes. The Notes, each dated the Effective Date and
duly executed and delivered by the Borrowers.
(3) Articles, Bylaws and Resolutions. Certified copies
of the articles or certificate of incorporation and by-laws or other
constituent documents of each Loan Party as in effect on the Effective
Date and all action, including shareholder approval, if necessary,
taken by each Loan Party and/or their respective shareholders or other
interest holders to authorize the execution, delivery and performance
of this Agreement and the other Loan Documents to which each is a
party and the Borrowings under this Agreement and the execution,
delivery and performance of the Senior Note Documents.
(4) Incumbency Certificates. Certificates of incumbency
and specimen signatures with respect to each of the officers of each
Loan Party who is authorized to execute and deliver this Agreement or
any other Loan Document on behalf of such Loan Party or any document,
certificate or instrument to be delivered in connection with this
Agreement or the other Loan Documents and to request Borrowings under
this Agreement.
(5) Good Standing Certificates. A certificate evidencing
the good standing of each Loan Party in the jurisdiction of its
organization and in each other jurisdiction in which it is qualified
to transact business.
(6) Control over Deposit Accounts. Such control
agreements with respect to Deposit Accounts as shall be required by
the Administrative Agent, duly executed by the applicable Borrower and
the depositary institution where each such Deposit Account is
maintained.
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(7) Landlord's and Warehouseman's Waivers. Waiver and
consent agreements duly executed on behalf of each landlord of real
property on which Collateral is located and each warehouseman having
possession of Collateral.
(8) Mortgages. The Mortgages duly executed and delivered
by the applicable Borrower, in proper form for recording in each
appropriate jurisdiction.
(9) Title Insurance. One or more unconditional
commitments for the issuance of mortgagee title insurance policies
with all requirements and conditions to the issuance of the final
policy deleted or marked satisfied, issued by a title insurance
company satisfactory to the Administrative Agent, each in an amount
equal to not less than the fair market value of the Real Estate
subject to the Mortgage insured thereby, insuring that such Mortgage
creates a valid first lien on, and security title to, all Real Estate
described therein, with no survey or other exceptions which the
Administrative Agent shall not have approved in writing.
(10) Real Estate Surveys. Such materials and information
concerning the Real Estate subject to a Mortgage as the Administrative
Agent may require, including, without limitation, (i) true and
accurate surveys satisfactory to the Administrative Agent of all of
the Real Estate, certified to the Administrative Agent and showing the
location of any special flood hazard areas thereon in compliance with
FEMA requirements, (ii) certificates of occupancy covering all of the
Real Estate, and (iii) owner's affidavits or indemnities acceptable to
the title insurance company as to such matters relating to the Real
Estate as the Administrative Agent or title insurance company may
request.
(11) Environmental Reports. A copy of each report listed
on SCHEDULE 6.1(c)(11).
(12) Pledge Agreements. Each Pledge Agreement duly
executed and delivered by the Borrower party thereto, together with
all certificates and stock powers, undated and in blank, constituting
Pledged Shares (as defined therein) required to be delivered by the
pledgor thereunder to the Administrative Agent in connection with the
execution and delivery of the Pledge Agreements.
(13) Trademark Agreement. A Trademark Security Agreement
duly executed and delivered by each of ▇▇▇▇▇▇▇, Cross Creek Apparel,
LLC, DeSoto ▇▇▇▇▇, Inc. and ▇▇▇▇▇▇▇ Asset Management.
(14) Patent Agreement. A Patent Security Agreement duly
executed and delivered by ▇▇▇▇▇▇▇.
(15) Schedule of Inventory/Accounts. A Schedule of
Inventory and a Schedule of Accounts, each prepared as of March 31,
2002 or a later date.
(16) Evidence of Insurance. Certificates or binders of
insurance relating to (i) each of the policies of insurance covering
any of the Collateral together with loss payable clauses which comply
with the terms of SECTION 9.8(b) and SECTION 10.5, (ii) each of the
policies of insurance required by the Mortgages, together with
mortgagee
75
clauses satisfactory to the Administrative Agent and (iii) flood
insurance with respect to any improvements to Real Estate located in
designated special flood hazard areas.
(17) Borrowing Base Certificate. A Borrowing Base
Certificate prepared as of March 31, 2002 or a later date duly
executed and delivered by the Financial Officer, demonstrating
Availability of not less than $65,000,000 after giving effect to the
Loans to be made on the Effective Date and any transactions
contemplated to occur or before the Effective Date.
(18) Notice of Borrowing. An Initial Notice of Borrowing
from the Borrowers' Representative to the Administrative Agent
requesting the Initial Loans and specifying the method of
disbursement.
(19) Financial Statements. Copies of all the financial
statements referred to in SECTION 7.1(n) and meeting the requirements
thereof.
(20) Officer's Certificate. A certificate of the
President of ▇▇▇▇▇▇▇ or a Financial Officer, stating that, to the best
of his knowledge and based on an examination sufficient to enable him
to make an informed statement, (a) all of the representations and
warranties made or deemed to be made under this Agreement are true and
correct as of the Effective Date, both with and without giving effect
to the Loans to be made at such time and the application of the
proceeds thereof, and (b) no Default or Event of Default exists.
(21) Release of Liens. Evidence (including any payoff
letter requested by the Administrative Agent) satisfactory to the
Administrative Agent of the release and termination of (or agreement
to release and terminate) all Liens other than Permitted Liens and
Liens permitted by SECTION 12.9(ii).
(22) Legal Opinion. A signed opinion of ▇▇▇▇▇▇ & Bird,
counsel for the Borrowers, and such local counsel as the
Administrative Agent shall deem necessary or desirable, opining as to
such matters in connection with the transactions contemplated by this
Agreement as any Lender or its counsel may reasonably request.
(23) Appraisals. Written appraisal reports prepared by
appraisers satisfactory to the Administrative Agent, reflecting asset
values adequate to support the Loans.
(24) Licensor Agreement. The Licensor Agreement duly
executed and delivered by ▇▇▇▇ Outdoors, Inc.
(25) Solvency Certificate. The Borrowers shall have
delivered to the Administrative Agent a certificate executed by the
Financial Officer, in form and substance satisfactory to the
Administrative Agent, certifying that after giving effect to the
Indebtedness represented by the Loans to be incurred and the
transactions contemplated by this Agreement and the Senior Note
Indenture, each Borrower and each of its Subsidiaries is solvent,
having assets of a fair salable value which exceeds the amount
required to pay its debts as they become absolute and matured
(including contingent, subordinated, unmatured and unliquidated
liabilities), and such Borrower and
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each of its Subsidiaries is able to and anticipates that it will be
able to meet its debts as they mature and has adequate capital to
conduct the business in which it is or proposes to be engaged.
(26) Aircraft Security Agreement. The Aircraft Chattel
Mortgages duly executed and delivered by ▇▇▇▇▇▇▇ and recorded in the
records of the Federal Aviation Administration (or provision therefor
satisfactory to the Administrative Agent having been made).
(27) Other Loan Documents. Copies of each of the other
Loan Documents duly executed by the parties thereto with evidence
satisfactory to the Administrative Agent and its counsel of the due
authorization, binding effect and enforceability of each such Loan
Document on each such party and such other documents and instruments
as the Administrative Agent may reasonably request.
(28) Fees. The Borrowers shall have paid all of the fees
payable on the Effective Date provided for or referred to herein.
(29) Security Interests. The Administrative Agent shall
have received satisfactory evidence that the Administrative Agent (for
the benefit of Lenders) has a valid and perfected first priority
security interest as of such date in all of the Collateral, subject
only to Permitted Liens and Liens permitted by SECTION 12.9(ii).
(30) Senior Note Transaction. On the Effective Date, the
Administrative Agent shall have received a fully executed copy of each
of the Senior Note Documents, certified by the Financial Officer as
being in the same form as the final drafts thereof furnished to the
Administrative Agent and approved by it prior to the Effective Date,
together with a written authorization of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, counsel for the Borrowers, stating that the Administrative
Agent and the Lenders may rely on certain portions of their legal
opinion delivered in connection with the transactions contemplated by
the Senior Note Indenture as though it were addressed to them. The
Administrative Agent shall also have received evidence satisfactory to
it that not less than $250,000,000 original principal amount of Senior
Notes have been issued and paid for and that the other transactions
contemplated by the Senior Note Documents to be consummated on or
prior to the Effective Date have been consummated in accordance with
the terms thereof without any waiver of any condition precedent to any
party's obligations thereunder or waiver of any material provisions
thereof other than such waivers to which the Administrative Agent has
consented.
Section 6.2 All Loans and Letters of Credit. At the time of
making of each Loan, including the Initial Loans and all subsequent Loans, and
the issuance of each Letter of Credit:
(a) all of the representations and warranties made or deemed to
be made under this Agreement shall be true and correct in all material respects
at such time both with and without giving effect to the Loans to be made at
such time and the application of the proceeds thereof (except to the extent any
such representation or warranty is made exclusively with reference to an
earlier date or is untrue solely by reason of the occurrence, since the next
prior quarterly
77
compliance certificate delivery date, of a change in facts or circumstances
which, if reflected accurately in the Schedules, would not constitute a Default
or Event of Default;
(b) the organizational actions of the Borrowers referred to in
SECTION 6.1(c)(3) shall remain in full force and effect and the incumbency of
officers shall be as stated in the certificates of incumbency delivered
pursuant to SECTION 6.1(c)(4) or as subsequently modified and reflected in a
certificate of incumbency delivered to the Administrative Agent; and
(c) no Default or Event of Default shall have occurred and is
continuing.
Each request or deemed request for any Borrowing hereunder shall be deemed to
be a certification by the Borrowers to the Administrative Agent and the Lenders
as to the matters set forth in SECTION 6.2(a) and (b) and the Administrative
Agent may, without waiving either condition, consider the conditions specified
in SECTIONS 6.2(a) and (b) fulfilled and a representation by the Borrowers to
such effect made, if no written notice to the contrary is received by the
Administrative Agent prior to the making of the Loan then to be made.
Section 6.3 Conditions as Covenants. In the event that the
Lenders permit this Agreement to become effective and make any Loans on the
Effective Date or permit FCC to issue a Letter of Credit Guarantee prior to the
satisfaction of all conditions precedent set forth in SECTION 5.1, and such
conditions are not waived in writing by the Administrative Agent, the Borrowers
shall nevertheless cause such condition or conditions to be satisfied within 30
days after the making of such Loans or the issuance of such Letter of Credit
Guarantee.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BORROWERS
Section 7.1 Representations and Warranties. ▇▇▇▇▇▇▇ and each
other Borrower represent and warrant to the Administrative Agent and to the
Lenders as follows:
(a) Organization; Power; Qualification. Such Borrower and each of
its Subsidiaries is a corporation or limited liability company, duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, having the power and authority to own its properties and to carry
on its business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization except to the extent its failure to be so
qualified could not reasonably be expected to have a Materially Adverse Effect.
The jurisdictions in which each Borrower and each of its Subsidiaries is
qualified to do business as a foreign entity are listed on SCHEDULE 7.1(a).
(b) Capitalization; Shareholder Agreements. The outstanding
Equity Interests of such Borrower have been duly and validly issued and are
fully paid and nonassessable, and the number and owners of Equity Interests of
such Borrower (other than ▇▇▇▇▇▇▇) are set forth on SCHEDULE 7.1(b). The
issuance and sale of such Borrower's Equity Interests have been registered or
qualified under applicable federal and state securities laws or are exempt
therefrom. Except as set forth on SCHEDULE 7.1(b), there are no shareholders
agreements, options, subscription agreements or other agreements or
understandings to which such Borrower is a party in effect with respect to the
Equity Interests of such Borrower, including, without limitation, agreements
providing for special voting requirements or arrangements for approval of
corporate actions or other matters relating to organizational governance or
restrictions on transfer or providing for the issuance of any securities
convertible into Equity Interests of such Borrower, any warrants or other
rights to acquire any shares or securities convertible into such Equity
Interests, or any agreement that obligates such Borrower, either by its terms
or at the election of any other Person, to repurchase such Equity Interests
under any circumstances. No Person or group (within the meaning of Section
13(d) of the Securities Exchange Act of 1934, as amended, or regulations
promulgated thereunder) owns or holds options which if exercised would result
of ownership of more than 5% of the issued and outstanding common stock of
▇▇▇▇▇▇▇ except as listed on SCHEDULE 7.1(b).
(c) Subsidiaries. SCHEDULE 7.1(c) correctly sets forth as of the
Agreement Date the name of each Subsidiary of each Borrower, its jurisdiction
of organization, the name of its immediate parent or parents, and the
percentage of its issued and outstanding Equity Interests owned by such
Borrower or any other Subsidiary of such Borrower and indicating whether such
Subsidiary is a Consolidated Subsidiary. Except as set forth on SCHEDULE
7.1(c),
(i) no Subsidiary of such Borrower has issued any
securities convertible into Equity Interests of such Subsidiary or any
options, warrants or other rights to acquire any Equity Interests or
securities convertible into such Equity Interests,
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(ii) the outstanding Equity Interests of each Subsidiary
of such Borrower are owned by such Borrower or a Wholly Owned
Subsidiary of such Borrower, or by such Borrower and one or more of
its Wholly Owned Subsidiaries, free and clear of all Liens, warrants,
options and rights of others of any kind whatsoever, and
(iii) such Borrower has no Subsidiaries.
The outstanding Equity Interests of each Subsidiary of such Borrower has been
duly and validly issued and is fully paid and nonassessable by the issuer, and
the number and owners of Equity Interests are set forth on SCHEDULE 7.1(c).
(d) Authorization of Agreement, Notes, Loan Documents and
Borrowing. Such Borrower has the right and power, and has taken all necessary
action to authorize it, to execute, deliver and perform this Agreement and each
of the Loan Documents, to which it is a party, in accordance with their
respective terms. This Agreement and each of the Loan Documents, to which it is
a party, have been duly executed and delivered by the duly authorized officers
of such Borrower and each is, or each when executed and delivered in accordance
with this Agreement will be, a legal, valid and binding obligation of such
Borrower, enforceable in accordance with its terms.
(e) Compliance of Agreement, Notes, Loan Documents and Borrowing
with Laws, Etc. Except as set forth on SCHEDULE 7.1(e), the execution, delivery
and performance of this Agreement and each of the Loan Documents in accordance
with their respective terms and the borrowings hereunder do not and will not,
by the passage of time, the giving of notice or otherwise,
(i) require any Governmental Approval or violate any
Applicable Law relating to such Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation, articles
of organization, by-laws, operating agreement or any shareholders'
agreement or other constituent documents of such Borrower or any of
its Subsidiaries,
(iii) conflict with, result in a breach of or constitute a
default under any material provisions of any indenture, agreement or
other instrument to which such Borrower or any of its Subsidiaries is
a party or by which such Borrower, any of its Subsidiaries or any of
such Borrower's or such Subsidiaries' property may be bound or any
material Governmental Approval relating to such Borrower or any of its
Subsidiaries, or
(iv) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter
acquired by such Borrower other than the Security Interest.
(f) Business. The Borrowers are engaged principally in the
business of designing, manufacturing, marketing and distributing athletic and
other apparel and sports uniforms.
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(g) Compliance with Law; Governmental Approvals.
(i) Except as set forth in SCHEDULE 7.1(g), each
Borrower and each Subsidiary
(A) has all Governmental Approvals, including
permits relating to federal, state and local Environmental
Laws, ordinances and regulations, required by any Applicable
Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on
appeal and is not the subject of any pending or, to the
knowledge of the Borrowers, threatened attack by direct or
collateral proceeding, and
(B) is in compliance with each Governmental
Approval applicable to it and in compliance with all other
Applicable Laws relating to it, including, without being
limited to, all Environmental Laws and all occupational
health and safety laws applicable to any Borrower, any
Subsidiary or their respective properties,
except for instances of noncompliance which would not, singly or in the
aggregate, cause a Default or Event of Default or have a Materially Adverse
Effect and in respect of which reserves in respect of any Borrower's or
Subsidiary's reasonably anticipated liability have been established on the
books of such Borrower or such Subsidiary, as applicable.
(ii) Without limiting the generality of the above, except
as disclosed on a report delivered pursuant to SECTION 6.1(c)(11) or
with respect to matters which could not reasonably be expected to
have, singly or in the aggregate, a Materially Adverse Effect:
(A) the operations of each Borrower and each
Subsidiary comply in all material respects with all
applicable environmental, health and safety requirements of
Applicable Law;
(B) each Borrower and each Subsidiary has
obtained all environmental, health and safety permits
necessary for its operation, and all such permits are in good
standing and each Borrower and Subsidiary is in compliance in
all material respects with all terms and conditions of such
permits;
(C) neither such Borrower nor any of its
Subsidiaries nor any of their respective present or past
property or operations are subject to any order from or
agreement with any public authority or private party
respecting (x) any environmental, health or safety
requirements of Applicable Law, (y) any Remedial Action, or
(z) any liabilities and costs arising from the Release or
threatened Release of a Contaminant into the environment;
(D) except as set forth in SCHEDULE 7.1(g),
none of the operations of such Borrower or of any of its
Subsidiaries is subject to any judicial or administrative
proceeding alleging a violation of any environmental, health
or safety requirement of Applicable Law;
(E) none of the present or past operations of
such Borrower or any of its Subsidiaries is the subject of
any investigation by any public authority
81
evaluating whether any Remedial Action is needed to respond
to a Release or threatened Release of a Contaminant into the
environment;
(F) neither such Borrower nor any of its
Subsidiaries has filed any notice under any requirement of
Applicable Law indicating past or present treatment, storage
or disposal of a hazardous waste, as that term is defined
under 40 CFR Part 261 or any state equivalent;
(G) neither such Borrower nor any of its
Subsidiaries has filed any notice under any requirement of
Applicable Law reporting a Release of a Contaminant into the
environment;
(H) except in compliance in all material
respects with applicable Environmental Laws, during the
course of such Borrower's or any of its Subsidiaries'
ownership of or operations on the Real Estate, there has been
no (1) generation, treatment, recycling, storage or disposal
of hazardous waste, as that term is defined under 40 CFR Part
261 or any state equivalent, (2) use of underground storage
tanks or surface impoundments, (3) use of asbestos-containing
materials, or (4) use of polychlorinated biphenyls (PCBs)
used in hydraulic oils, electrical transformers or other
equipment;
(I) neither such Borrower nor any of its
Subsidiaries has entered into any negotiations or agreements
with any Person (including, without limitation, any prior
owner of any of the Real Estate or other property of such
Borrower or any of its Subsidiaries) relating to any Remedial
Action or environment-related claim;
(J) neither such Borrower nor any of its
Subsidiaries has received any notice or claim to the effect
that it is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant into the
environment;
(K) neither such Borrower nor any of its
Subsidiaries has any material contingent liability in
connection with any Release or threatened Release of any
Contaminant into the environment;
(L) no Environmental Lien has attached to any
of the Real Estate or other property of the Borrowers or of
any of the Subsidiaries;
(M) the presence and condition of all
asbestos-containing material which is on or part of the Real
Estate (excluding any raw materials used in the manufacture
of products or products themselves) do not violate in any
material respect any currently applicable requirement of
Applicable Law; and
(N) no Borrower nor any Subsidiary
manufactures, distributes or sells, and has never
manufactured, distributed or sold, products which contain
asbestos-containing material.
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(iii) The Borrowers have notified the Lenders and the
Administrative Agent of the receipt by any Borrower or Subsidiary of
any written notice of a material violation of any Environmental Laws
and occupational health and safety laws applicable to a Borrower, any
of its Subsidiaries or any of their respective properties.
(h) Title to Properties. Except as set forth in SCHEDULE 7.1(h),
each Borrower and each Subsidiary has valid and legal title to or leasehold
interest in all material personal property, Real Estate and other assets used
in its business, including, but not limited to, those reflected on the most
recent balance sheet of the Borrowers delivered pursuant to SECTION 7.1(n).
(i) Liens. Except as set forth in SCHEDULE 7.1(i), none of the
properties and assets of any Borrower or any Subsidiary is subject to any Lien,
except Permitted Liens. Other than the Financing Statements, to the best
knowledge of each Borrower (after due investigation) no financing statement
under the UCC of any State or other instrument evidencing a Lien which names
such Borrower or any Subsidiary of such Borrower as debtor has been filed (and
has not been terminated or will not be terminated as a result of the
transactions to occur on the Effective Date) in any state or other
jurisdiction, and neither any Borrower nor any Subsidiary has authorized the
filing of any such financing statement or other instrument or executed any
security agreement authorizing any secured party thereunder to file any such
financing statement or instrument, except to perfect those Liens listed on
SCHEDULE 7.1(i).
(j) Debt and Guaranties. SCHEDULE 7.1(j) is a complete and
correct listing as of the Agreement Date of all (i) Debt in excess of $250,000
and (ii) Guaranties of each Borrower and each of its Subsidiaries. Each
Borrower and its Subsidiaries has performed and is in compliance with all of
the terms of such Debt and Guaranties and all instruments and agreements
relating thereto, and no default or event of default, or event or condition
which with notice or lapse of time, or both, would constitute such a default or
event of default, exists with respect to any such Indebtedness or Guaranty.
(k) Litigation. Except as set forth on SCHEDULE 7.1(k), as of the
Agreement Date there are no actions, suits or proceedings pending (nor, to the
knowledge of any Borrower, are there any actions, suits or proceedings
threatened, or any reasonable basis therefor) against or in any other way
relating to or affecting any Borrower or its Subsidiaries or any Borrower's or
any of its Subsidiaries' properties in any court or before any arbitrator of
any kind or before or by any governmental body, except actions, suits or
proceedings of the character normally incident to the kind of business
conducted by such Borrower or any of its Subsidiaries which, if adversely
determined, would not singly or in the aggregate have a Materially Adverse
Effect, and there are no strikes or walkouts in progress, pending or to the
Borrowers' knowledge contemplated relating to any labor contracts to which any
Borrower or its Subsidiaries is a party, relating to any labor contracts being
negotiated, or otherwise.
(l) Tax Returns and Payments. Except as set forth on SCHEDULE
7.1(l), as of the Agreement Date all federal, state and local as well as
foreign national, provincial and local and other tax returns of each Borrower
and Subsidiary required by Applicable Law to be filed have been duly filed, or
extensions have been secured therefor, and all federal, state and local and
foreign national, provincial and local and other taxes, assessments and other
governmental charges or levies upon the Borrowers and Subsidiaries and such
Borrower's and any of its
83
Subsidiaries' property, income, profits and assets which are due and payable
have been paid, except any such nonpayment which is at the time permitted under
SECTION 10.6. The charges, accruals and reserves on the books of Borrowers and
Subsidiaries in respect of federal, state and local and foreign national,
provincial and local taxes for all Fiscal Years and portions thereof since the
organization of each such Borrower are in the judgment of the Borrowers
adequate, and the Borrowers know of no reason to anticipate any additional
assessments for any of such years which, singly or in the aggregate, might have
a Materially Adverse Effect.
(m) Burdensome Provisions. No Borrower nor any Subsidiary is a
party to any indenture, agreement, lease or other instrument, or subject to any
charter or corporate restriction, Governmental Approval or Applicable Law
compliance with the terms of which could reasonably be expected to have a
Materially Adverse Effect.
(n) Financial Statements.
(i) ▇▇▇▇▇▇▇ has furnished to the Administrative Agent
and the Lenders copies of (A) the unaudited consolidated financial
statements of ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries for the months
of January and February 2002 and (B) the audited consolidated and
unaudited consolidating financial statements of ▇▇▇▇▇▇▇ and its
Consolidated Subsidiaries as of December 29, 2001, which financial
statements present fairly in all material respects in accordance with
GAAP consistently applied (except, in the case of the interim
statements, for the absence of notes and subject to year end audit
adjustments), the financial position of the Borrowers as at their
respective dates, and the results of operations of the Borrowers for
the periods then ended.
(ii) ▇▇▇▇▇▇▇ has furnished to the Administrative Agent
and the Lenders copies of the Projections. The Projections have been
prepared by ▇▇▇▇▇▇▇ in light of the past operations of the business of
▇▇▇▇▇▇▇ and its Consolidated Subsidiaries and represent as of the
respective dates thereof the good faith opinion of ▇▇▇▇▇▇▇ and its
senior management concerning the most probable course of business of
▇▇▇▇▇▇▇ and its Consolidated Subsidiaries; PROVIDED, HOWEVER, such
projections are subject to risks and uncertainties which could cause
the Borrowers' actual results, performance and achievements to differ
materially from those expressed in, or implied by, the Projections.
(iii) Except as disclosed or reflected in the financial
statements described in CLAUSES (i) and (ii) above or in any notes
thereto or otherwise in writing to the Lenders prior to the Agreement
Date, neither ▇▇▇▇▇▇▇ nor any of its Subsidiaries has or will have, as
of the Effective Date, any material liabilities, contingent or
otherwise, and there are and will be no material unrealized or
anticipated losses of ▇▇▇▇▇▇▇ and its Subsidiaries.
(o) Adverse Change. After giving effect to the transactions
contemplated to occur on the Effective Date since December 29, 2001, no event
has occurred or failed to occur, as of the Agreement Date, which has had, or
may have, singly or in the aggregate, a Materially Adverse Effect.
(p) ERISA. Except in each case for instances of non-compliance
which individually or in the aggregate could not reasonably be expected to have
a Materially Adverse Effect,
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(i) Neither any Borrower nor any Related Company
maintains or contributes to any Benefit Plan other than those listed
on SCHEDULE 7.1(p);
(ii) Except as set forth on SCHEDULE 7.1(p) (assuming any
Remediable Defects had been corrected), each Benefit Plan is in
substantial compliance with ERISA, the Code and other applicable laws,
including but not limited to those provisions thereof relating to
reporting and disclosure, and neither any Borrower nor any Related
Company has received any notice asserting that a Benefit Plan is not
in compliance with ERISA;
(iii) No material liability to the PBGC or to a
Multiemployer Plan has been, or is expected to be, incurred by any
Borrower or any Related Company (exclusive of required premium
payments to the PBGC);
(iv) Except as set forth on SCHEDULE 7.1(p) (assuming any
Remediable Defects had been corrected), each Benefit Plan intended to
qualify under Section 401(a) of the Code so qualifies and any related
trust is exempt from federal income tax under Section 501(a) of the
Code;
(v) A favorable determination letter from the IRS (if
required) has been issued or applied for with respect to each such
plan and trust and nothing that is not a Remediable Defect has
occurred since the date of such determination letter that would
adversely affect such qualification or tax-exempt status;
(vi) No Benefit Plan subject to the minimum funding
standards of the Code has failed to meet such standards;
(vii) Neither any Borrower nor any Related Company has
transferred any pension plan liability in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA;
(viii) Except as set forth on SCHEDULE 7.1(p), neither any
Borrower nor any Related Company has any liability, actual or
contingent, with respect to any Benefit Plan other than to make
payments to the Benefit Plan in accordance with its terms, and there
are no pending or overtly threatened or known claims against a Benefit
Plan other than claims for benefits filed in the normal course of such
Benefit Plan's operations;
(ix) Except as set forth on SCHEDULE 7.1(p), no
non-exempt prohibited transaction with the meaning of Section 4975 of
the Code or Section 406 of ERISA has occurred with respect to a
Benefit Plan; and
(x) Except as set forth on SCHEDULE 7.1(p) or as
required by the provisions of the Consolidated Omnibus Reconciliation
Act of 1986, as amended, or similar state mandated-benefit laws, none
of the Benefit Plans provides welfare benefits to covered employees or
their dependents extending beyond termination of the covered
employees' service with Borrower or a Related Company.
85
(q) Absence of Defaults. Neither ▇▇▇▇▇▇▇ nor any of its
Subsidiaries is in default under its articles or certificate of incorporation
or by-laws or other constituent document and no event has occurred, which has
not been remedied, cured or waived,
(i) which constitutes a Default or an Event of Default,
or
(ii) which constitutes, or which with the passage of time
or giving of notice, or both, would constitute, a default or event of
default by a Borrower or any of its Subsidiaries under any material
agreement (other than this Agreement) or judgment, decree or order to
which a Borrower or any of its Subsidiaries is a party or by which a
Borrower, any of its Subsidiaries or any of such Borrower's or any of
its Subsidiaries' properties may be bound or which would require such
Borrower or any of its Subsidiaries to pay any Debt under any such
material agreement or judgment, decree or order prior to the scheduled
maturity date therefor, except, in the case only of any such
agreement, for alleged defaults which are being contested in good
faith by appropriate proceedings and with respect to which reserves in
respect of any Borrower's or Subsidiary's reasonably anticipated
liability have been established on the books of such Borrower or such
Subsidiary.
(r) Accuracy and Completeness of Information.
(i) All written information, reports and other papers
and data produced by or on behalf of a Borrower and furnished to the
Administrative Agent or any Lender were, at the time the same were so
furnished, complete and correct in all material respects, to the
extent necessary to give the recipient a true and accurate knowledge
of the subject matter. No fact is known to any Borrower which has had,
or in the future reasonably could be expected to have (so far as such
Borrower can foresee), a Materially Adverse Effect, which has not been
set forth in the financial statements or disclosure delivered prior to
the Effective Date, in each case referred to in SECTION 7.1(n), or in
such written information, reports or other papers or data or otherwise
disclosed in writing to the Administrative Agent and the Lenders prior
to the Agreement Date.
(ii) No Borrower has any actual knowledge that any
document furnished or written statement made to the Administrative
Agent or any Lender by any Person other than a Borrower (a copy of
which has been furnished to ▇▇▇▇▇▇▇) in connection with the
negotiation, preparation or execution of this Agreement or any of the
Loan Documents contained any incorrect statement of a material fact or
omitted to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were
made, not misleading.
(s) Solvency. In each case after giving effect to the Debt
represented by the Loans outstanding and to be incurred, the transactions
contemplated by this Agreement and the Senior Note Indenture, each Borrower and
each Subsidiary is solvent, having assets of a fair salable value which exceeds
the amount required to pay its debts as they become absolute and matured
(including contingent, subordinated, unmatured and unliquidated liabilities),
and each Borrower and each Subsidiary is able to and anticipates that it will
be able to meet its debts as they mature and has adequate capital to conduct
the business in which it is or proposes to be engaged.
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(t) Accounts.
(i) Status.
(A) Each Account reflected in the computations
included in any Borrowing Base Certificate meets the criteria
enumerated in CLAUSES (a) through (p) of the definition of
Eligible Account, except as disclosed in such Borrowing Base
Certificate or as disclosed in a timely manner in a
subsequent Borrowing Base Certificate or otherwise in writing
to the Administrative Agent.
(B) No Borrower has knowledge of any fact or
circumstance not disclosed to the Administrative Agent in a
Borrowing Base Certificate or otherwise in writing which
would impair the validity or collectibility of any Eligible
Account of $1,000,000 or more or of Eligible Accounts which
(regardless of the individual amount thereof) aggregate
$2,000,000 or more.
(ii) Chief Executive Office. The chief executive offices
of the Borrowers and the books and records relating to the Accounts
are located at the address or addresses set forth on SCHEDULE 7.1(t);
no Borrower has maintained its chief executive office or books and
records relating to any Accounts at any other address at any time
during the five years immediately preceding the Agreement Date except
as disclosed on SCHEDULE 7.1(t).
(u) Inventory.
(i) Schedule of Inventory. All Inventory included in any
Schedule of Inventory or Borrowing Base Certificate delivered to the
Administrative Agent pursuant to SECTION 9.11 meets the criteria
enumerated in CLAUSES (a) through (h) of the definition of Eligible
Inventory, except as disclosed in such Schedule of Inventory or
Borrowing Base Certificate or in a timely manner in a subsequent
Schedule of Inventory or Borrowing Base Certificate, or as otherwise
specifically disclosed in writing to the Administrative Agent.
(ii) Condition. All Inventory is in good condition, meets
in all material respects the standards imposed by any governmental
agency, or department or division thereof, having regulatory authority
over such goods, their use or sale, and is currently either usable or
salable in the normal course of the Borrowers' business, except to the
extent reserved against in the financial statements referred to in
SECTION 7.1(n) or delivered pursuant to ARTICLE 11 or as disclosed on
a Schedule of Inventory delivered to the Administrative Agent pursuant
to SECTION 9.11(b).
(iii) Location. All Inventory is located on the premises
set forth on SCHEDULE 7.1(u) or is Inventory in transit to one of such
locations, except as otherwise disclosed in writing to the
Administrative Agent, and no Borrower has, in the last year, located
such Inventory at premises other than those set forth on SCHEDULE
7.1(u).
(v) Equipment. All Equipment is in good order and repair in all
material respects, subject to ordinary wear and tear, and is located on the
premises set forth on SCHEDULE 7.1(v) and has been so located at all times
during the last year.
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(w) Bank Accounts. SCHEDULE 7.1(w) is a complete and correct
listing as of the Agreement Date of all lockbox, demand deposit and other bank
accounts maintained by the Borrowers and the Subsidiaries, specifying the
depositary, type and number of each such account.
(x) Intellectual Property. SCHEDULE 7.1(x) sets forth a correct
and complete list of all of the Intellectual Property. None of the Intellectual
Property is subject to any licensing agreement or similar arrangement except as
set forth on SCHEDULE 7.1(x) or as entered into in the sale or distribution of
the Borrowers' Inventory in the ordinary course of business. To the best of the
Borrowers' knowledge, none of the Intellectual Property infringes on or
conflicts with any other Person's property, and no other Person's property
infringes on or conflicts with the Intellectual Property. The Intellectual
Property described on SCHEDULE 7.1(x) constitutes all of the property of such
type necessary to the current and anticipated future conduct of the Borrowers'
business.
(y) Real Property. No Borrower owns any Real Estate or leases
(for a term longer than three years) any Real Estate other than that described
on SCHEDULE 7.1(y) and other than Real Estate acquired or leased after the
Effective Date for which the applicable Borrower has complied with the
requirements of SECTION 9.14.
(z) Corporate and Fictitious Names. Except as otherwise disclosed
on SCHEDULE 7.1(z), during the five-year period preceding the Agreement Date,
neither such Borrower nor any predecessor thereof has been known as or used any
corporate or fictitious name other than the corporate name of such Borrower on
the Effective Date.
(aa) Federal Reserve Regulations. Neither any Borrower nor any
Subsidiary is engaged and none will engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" (as each of the quoted terms is
defined or used in Regulation U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans will be used for
so purchasing or carrying margin stock or, in any event, for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation T,
U or X of such Board of Governors. If requested by the Administrative Agent or
any Lender, a Borrower will furnish to the Administrative Agent and the Lenders
a statement or statements in conformity with the requirements of said
Regulation T, U or X to the foregoing effect.
(bb) Investment Company Act. No Borrower is an "investment
company" or a company "controlled" by an "investment company" (as each of the
quoted terms is defined or used in the Investment Company Act of 1940, as
amended).
(cc) Employee Relations. Each Borrower and each Subsidiary has an
adequate work force in place and is not, except as set forth on SCHEDULE
7.1(cc), party to any collective bargaining agreement nor has any labor union
been recognized as the representative of such Borrower's or any of its
Subsidiaries' employees, and no Borrower knows of any pending, threatened or
contemplated strikes, work stoppage or other labor disputes involving such
Borrower's or any of its Subsidiaries' employees.
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(dd) Trade Names. All trade names or styles under which any
Borrower sells Inventory or Equipment or creates Accounts, or to which
instruments in payment of Accounts are made payable, are listed on SCHEDULE
7.1(dd).
(ee) Senior Notes. ▇▇▇▇▇▇▇ has the corporate power and authority
to issue the Senior Notes. The issuance and sale of the Senior Notes have been
registered or qualified under applicable federal and state securities laws or
are exempt therefrom. The Senior Notes are the legal valid and binding
obligations of ▇▇▇▇▇▇▇ enforceable against ▇▇▇▇▇▇▇ in accordance with their
terms (including those pertaining to subordination). ▇▇▇▇▇▇▇ has delivered to
the Administrative Agent a complete and correct copy of all documents
evidencing or relating to the Senior Notes including the Senior Note Documents,
and each of the representations and warranties made by ▇▇▇▇▇▇▇ therein is true
and correct in all material respects as of the date of such Documents.
Section 7.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this ARTICLE 7 and all statements
contained in any certificate, financial statement, or other instrument,
delivered by or on behalf of the Borrowers pursuant to or in connection with
this Agreement or any of the Loan Documents (including, but not limited to, any
such representation, warranty or statement made in or in connection with any
amendment thereto) shall constitute representations and warranties made under
this Agreement. Unless limited to a specific date, all representations and
warranties made under this Agreement shall be made or deemed to be made at and
as of the Agreement Date, at and as of the Effective Date and at and in
accordance with SECTION 6.2(a), as of the date of each Loan. All
representations and warranties made or deemed to be made under this Agreement
shall survive and not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Lender or any
borrowing hereunder.
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ARTICLE 8
SECURITY INTEREST
Section 8.1 Security Interest.
(a) To secure the payment, observance and performance of the
Secured Obligations, each Borrower hereby mortgages, pledges and assigns all of
the Collateral to the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders and Affiliates of the Lenders, and grants
to the Administrative Agent, for the benefit of itself as Administrative Agent
and the Lenders and Affiliates of the Lenders, a continuing security interest
in, and a continuing Lien upon, all of the Collateral.
(b) As additional security for all of the Secured Obligations,
each Borrower grants to the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders and Affiliates of the Lenders, a security
interest in, and assigns to the Administrative Agent, for the benefit of itself
as Administrative Agent and the Lenders and Affiliates of the Lenders, all of
such Borrower's right, title and interest in and to, any deposits or other sums
at any time credited by or due from each Lender and each Affiliate of a Lender
to such Borrower, or credited by or due from any participant of any Lender to
the Borrower, with the same rights therein as if the deposits or other sums
were credited by or due from such Lender. Each Borrower hereby authorizes each
Lender and each Affiliate of such Lender and each participant to pay or deliver
to the Administrative Agent, for the account of the Lenders, without any
necessity on the Administrative Agent's or any Lender's part to resort to other
security or sources of reimbursement for the Secured Obligations or the
requirement of any further consent or direction by any Borrower, at any time
during the continuation of any Event of Default of the aforesaid deposits
(general or special, time or demand, provisional or final) or other sums for
application to any Secured Obligation, irrespective of whether any demand has
been made or whether such Secured Obligation is mature, and the rights given
the Administrative Agent, the Lenders, their Affiliates and participants
hereunder are intended to constitute control in respect of such deposits and
are cumulative with such Person's other rights and remedies, including other
rights of set-off. The Administrative Agent will promptly notify a Borrower of
its receipt of any such funds for application to the Secured Obligations, but
failure to do so will not affect the validity or enforceability thereof. The
Administrative Agent may give notice of the above grant of a security interest
in and assignment of the aforesaid deposits and other sums, and authorization,
to, and make any suitable arrangements with, any Lender, any such Affiliate of
any Lender or participant for effectuation thereof upon the occurrence and
during the continuance of an Event of Default, and each Borrower hereby
irrevocably appoints the Administrative Agent as its attorney to collect any
and all such deposits or other sums to the extent any such payment is not made
to the Administrative Agent or any Lender by such Lender, Affiliate or
participant.
Section 8.2 Continued Priority of Security Interest.
(a) The Security Interest granted by each Borrower shall at all
times be valid, perfected and enforceable against such Borrower and all third
parties in accordance with the terms of this Agreement, as security for the
Secured Obligations, and neither the Collateral nor the Real Estate shall at
any time be subject to any Liens that are prior to the Security Interest or,
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other than Permitted Liens and Liens permitted by SECTIONS 12.9(ii) AND (iii),
on a parity with or junior to the Security Interest.
(b) Each Borrower shall, at its sole cost and expense, take all
action that may be necessary, or that the Administrative Agent may reasonably
request, so as at all times to maintain the validity, perfection,
enforceability and rank of the Security Interest in the Collateral and the Real
Estate in conformity with the requirements of SECTION 8.2(a), or to enable the
Administrative Agent and the Lenders to exercise or enforce their rights
hereunder (subject to Permitted Liens and Liens permitted by SECTIONS 12.9(ii)
AND (iii)), including, but not limited to:
(i) paying all taxes, assessments and other claims
lawfully levied or assessed on any of the Collateral, except to the
extent that such taxes, assessments and other claims constitute
Permitted Liens,
(ii) using all reasonable efforts to obtain, after the
Agreement Date, landlords', mortgagees', bailees', warehousemen's or
processors' and mechanics' releases, subordinations or waivers.
(iii) delivering to the Administrative Agent, for the
benefit of the Lenders, endorsed or accompanied by such instruments of
assignment as the Administrative Agent may reasonably specify, and
stamping or marking, in such manner as the Administrative Agent may
reasonably specify, any and all chattel paper, instruments, letters
and advices of guaranty and documents evidencing or forming a part of
the Collateral,
(iv) delivering to the Administrative Agent, for the
benefit of the Lenders, a description of the facts forming the basis
for any commercial tort claim of any Loan Party, promptly upon the
occurrence thereof, together with such confirmation of the Security
Interest therein as the Administrative Agent may reasonably request,
and
(v) executing and delivering financing statements,
pledges, designations, hypothecations, notices and assignments in each
case in form and substance satisfactory to the Administrative Agent in
its reasonable judgment relating to the creation, validity,
perfection, maintenance or continuation of the Security Interest under
the UCC or other Applicable Law.
(c) The Administrative Agent is hereby authorized to file one or
more financing or continuation statements or amendments thereto in the name of
a Borrower for any purpose described in SECTION 8.2(b). The Administrative
Agent will endeavor to give the relevant Borrower notice of the filing of any
such statements or amendments, which may be given by delivery of a copy of such
filing, but shall not be liable for its failure to deliver any such notice or
copy.
(d) Each Borrower shall ▇▇▇▇ its books and records as directed by
the Administrative Agent and as may be necessary or appropriate to evidence,
protect and perfect the Security Interest and shall cause its financial
statements to reflect the Security Interest.
Section 8.3 Releases. If any of the Collateral or Real Estate
shall be sold, transferred or otherwise disposed of by any Loan Party in a
transaction permitted by the terms of this
91
Agreement or any Security Document, then the Administrative Agent, at the
request and sole expense of the Borrowers, shall execute and deliver to such
Loan Party all releases or other documents reasonably necessary or desirable
for the release of the Liens created hereby or by the terms of any Security
Document. The separate consent or approval of the Lenders to the delivery of
such releases shall not be required.
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ARTICLE 9
COLLATERAL COVENANTS
Each Borrower covenants and agrees that such Borrower will duly and
punctually pay the principal of, and interest on, and all other amounts payable
with respect to, the Loans and all other Secured Obligations, and until the
Revolving Credit Facility has been terminated and all the Secured Obligations
have been paid in full, unless the Required Lenders shall otherwise consent in
the manner provided in SECTION 16.11:
Section 9.1 Collection of Accounts.
(a) The Borrowers will and will cause each other Loan Party to
cause all monies, checks, notes, drafts and other payments relating to or
constituting proceeds of trade accounts receivable, other Accounts and other
Collateral to be deposited in a Controlled Account in accordance with the
procedures set out in the corresponding Control Agreement. In particular, each
Borrower will and will cause each other Loan Party to advise each Account
Debtor that makes payment to such Borrower or other Loan Party by wire
transfer, ACH Transfer or similar means to make payment directly to a
Controlled Account.
(b) Without limiting the ability of the Administrative Agent and
the Lenders to exercise other rights and remedies hereunder, all of the Loan
Parties shall have established with a Clearing Bank, Lockboxes to which monies,
checks, notes, drafts and other payments relating to or constituting proceeds
of Collateral shall be sent and each Borrower will and will cause each other
Loan Party to:
(i) advise each Account Debtor on trade accounts
receivable that does not make payments directly to a Controlled
Account to address all remittances with respect to amounts payable on
account thereof to a specified Lockbox, and
(ii) stamp all invoices relating to trade accounts
receivable with a legend satisfactory to the Administrative Agent
indicating that payment is to be made to such Borrower or other Loan
Party via a specified Lockbox.
(c) The Borrowers and the Administrative Agent shall cause all
collected balances in each Controlled Account to be transmitted daily by wire
transfer, ACH Transfer, depository transfer check or other means in accordance
with the procedures set forth in the corresponding Control Agreement or such
instructions, to the Administrative Agent in accordance with the instructions
set forth in ANNEX E:
(i) for application, on account of the Secured
Obligations, as provided in SECTIONS 2.3(c), 5.10(f), 5.10(i), 13.2
AND 13.3, such credits to be entered as of the Business Day they are
received if they are received prior to 12:00 noon and to be
conditioned upon final payment in cash or solvent credits of the items
giving rise to them (PROVIDED that a collection fee shall be payable
by the Borrowers with respect to any such credit received in other
than immediately available funds, equal to one day's interest, at the
rate applicable to Base Rate Loans, on such amount), and
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(ii) with respect to the balance, so long as no Default
or Event of Default has occurred and is continuing, for transfer by
wire transfer, ACH Transfer or depository transfer check to a
Disbursement Account or other account as agreed between the
Administrative Agent and the Borrowers.
(d) Any monies, checks, notes, drafts or other payments referred
to in SUBSECTION (a) or (b) of this SECTION 9.1 which, notwithstanding the
terms of such subsection, are received by or on behalf of the applicable
Borrower will be held in trust for the Administrative Agent and will be
delivered to the Administrative Agent or a Clearing Bank as promptly as
possible, in the exact form received, together with any necessary endorsements
for application by the Administrative Agent directly to the Secured Obligations
or, as applicable, for deposit in the Controlled Account maintained with such
Clearing Bank and processing in accordance with the terms of the corresponding
Control Agreement.
Section 9.2 Verification and Notification.
(a) The Administrative Agent shall have the right at any time,
with or without notice, (i) in the name of the Administrative Agent, the
Lenders or in the name of a Borrower, to verify the validity, amount or any
other matter relating to any Accounts by mail, telephone, telegraph or
otherwise (PROVIDED that the Administrative Agent shall endeavor to give notice
of any such action to the Borrowers, but shall not be liable for failure to
give any such notice) and (ii) during customary business hours, to review,
audit and make extracts from all records and files related to any of the
Accounts.
(b) At any time when an Event of Default exists, the
Administrative Agent shall have the right from time to time with or without
notice to the Borrowers to notify the Account Debtors or other obligors under
any Accounts of the assignment of such Accounts to the Administrative Agent,
for the benefit of the Lenders, and to direct such Account Debtor or obligor to
make payment of all amounts due or to become due thereunder directly to the
Administrative Agent, and, upon such notification and at the expense of the
Borrowers, to enforce collection of any such Accounts and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as the relevant Borrower might have done.
Section 9.3 Disputes, Returns and Adjustments.
(a) In the event any amounts due and owing under any Account for
an amount in excess of $2,000,000 are in dispute between the Account Debtor and
a Borrower, such Borrower shall provide the Administrative Agent with prompt
written notice thereof.
(b) Each Borrower shall notify the Administrative Agent promptly
of all returns and credits in excess of $2,000,000 in respect of any Account
(except Accounts temporarily credited in the ordinary course of business and
reissued in a corrected amount), which notice shall specify the Account
affected.
(c) Each Borrower may, in the ordinary course of business unless
a Default or an Event of Default has occurred and is continuing, grant any
extension of time for payment of any Account or compromise, compound or settle
the same for less than the full amount thereof, or release wholly or partly any
Person liable for the payment thereof, or allow any credit or
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discount whatsoever therein; PROVIDED that (i) no such action results in the
reduction of more than $2,000,000 in the amount payable with respect to any
Account or of more than $5,000,000 with respect to all Accounts in any Fiscal
Year (in each case, excluding the allowance of credits or discounts in the
ordinary course of the relevant Borrower's business), and (ii) the
Administrative Agent is promptly notified of the amount of such adjustments and
the Account(s) affected thereby.
Section 9.4 Invoices.
(a) No Borrower will use any invoices other than invoices in the
names of the Borrowers or names used by the Borrowers and listed on SCHEDULE
7.1(dd) and reflecting payment instructions to a Bank Lockbox without giving
the Administrative Agent 30 days prior notice of the intended use of a
different form of invoice together with a copy of such different form.
(b) Upon the request of the Administrative Agent made at any time
when a Default or Event of Default exists, each Borrower shall deliver to the
Administrative Agent, at the Borrowers' expense, copies of customers' invoices
or the equivalent, original shipping and delivery receipts or other proof of
delivery, customers' statements, customer address lists, the original copy of
all documents, including, without limitation, repayment histories and present
status reports, relating to Accounts and such other documents and information
relating to the Accounts as the Administrative Agent shall specify.
Section 9.5 Delivery of Instruments. In the event any Account
is at any time evidenced by a promissory note, trade acceptance or any other
instrument for the payment of money, the relevant Borrower will promptly upon
request of the Administrative Agent deliver such instrument to the
Administrative Agent.
Section 9.6 Sales of Inventory. All sales of Inventory will
be made in compliance in all material respects with all requirements of
Applicable Law.
Section 9.7 Ownership and Defense of Title.
(a) Except for Permitted Liens and Liens permitted by
SECTIONS 12.9(ii) AND (iii), a Borrower shall at all times be the sole
owner or lessee of each and every item of Collateral and shall not create any
lien on, or sell, lease, exchange, assign, transfer, pledge, hypothecate, grant
a security interest or security title in or to or otherwise dispose of, any of
the Collateral or any interest therein, except for sales of Inventory in the
ordinary course of business, for cash or on open account or on terms of payment
ordinarily extended to its customers, sales of property that is obsolete, worn
out or no longer useful in the Borrowers' businesses, and except for
dispositions contemplated pursuant to SECTION 12.7 or that are otherwise
expressly permitted under this Agreement. The inclusion of "proceeds" of the
Collateral under the Security Interest shall not be deemed a consent by the
Administrative Agent or the Lenders to any other sale or other disposition of
any Collateral.
(b) Each Borrower shall defend its title or leasehold interest in
and to, and the Security Interest in, the Collateral against the claims and
demands of all Persons.
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Section 9.8 Insurance.
(a) The Borrowers shall at all times maintain insurance on the
Inventory and Equipment against loss or damage by fire, theft (excluding theft
by employees), burglary, pilferage, loss in transit and such other hazards as a
prudent Person similarly situated would maintain coverage against, in amounts
not to exceed those obtainable at commercially reasonable rates and under
policies issued by insurers acceptable to the Administrative Agent in the
exercise of its reasonable judgment. The insurance policies and amounts in
effect as of the Agreement Date are acceptable. All premiums on such insurance
shall be paid by the Borrowers and copies of the policies delivered to the
Administrative Agent at its request. The Borrowers will not use or permit the
Inventory or Equipment to be used in any manner which might render inapplicable
any insurance coverage.
(b) All insurance policies required under SECTION 9.8(a) shall
name the Administrative Agent, for the benefit of the Lenders, as an additional
insured and shall contain loss payable clauses in the form submitted to the
Borrowers by the Administrative Agent, or otherwise in form and substance
satisfactory to the Administrative Agent, naming the Administrative Agent, for
the benefit of the Lenders, as loss payee, as its interests may appear, and
providing that
(i) all proceeds thereunder shall be payable to the
Administrative Agent, for the benefit of the Lenders,
(ii) no such insurance shall be affected by any act or
neglect of the insured or owner of the property described in such
policy, and
(iii) such policy and loss payable clauses may be
cancelled, amended or terminated only upon at least 10 days' prior
written notice given to the Administrative Agent.
(c) Any proceeds of insurance referred to in this SECTION 9.8
which are paid to the Administrative Agent, for the account of the Lenders,
shall be, at the option of the Required Lenders in their sole discretion,
either (i) applied to replace the damaged or destroyed property, or (ii)
applied to the payment or prepayment of the Secured Obligations, PROVIDED that
if no Default or Event of Default exists, insurance proceeds in respect of any
loss having a value, as adjusted, not greater than $10,000,000 (or such greater
amount as the Required Lenders may approve) shall be released to the applicable
Borrower to be applied to the repair, restoration or replacement of the damaged
property, subject to such reasonable conditions or controls as the
Administrative Agent may specify.
Section 9.9 Location of Offices and Collateral.
(a) No Borrower will change its name, its identity or corporate
structure, or its jurisdiction of organization without giving the
Administrative Agent 30 days' prior written notice thereof.
(b) All Inventory, other than Inventory in transit to any such
location, will at all times be kept by a Borrower at the locations set forth
in SCHEDULE 7.1(u), and shall not, without the
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prior written consent of the Administrative Agent, be removed therefrom except
pursuant to sales of Inventory permitted under SECTION 9.7(a).
(c) If any Inventory is in the possession or control of any of a
Borrower's agents or processors, such Borrower shall notify such agents or
processors of the Security Interest (and shall promptly provide copies of any
such notice to the Administrative Agent and the Lenders) and, upon the
occurrence of an Event of Default, shall instruct them (and cause them to
acknowledge such instruction) to hold all such Inventory for the account of the
account of the Lenders, subject to the instructions of the Administrative
Agent.
Section 9.10 Records Relating to Collateral.
(a) Each Borrower will at all times
(i) keep complete and accurate records of Inventory on a
basis consistent with past practices of such Borrower so as to permit
comparison of Inventory records relating to different time periods,
itemizing and describing the kind, type and quantity of Inventory and
the Borrower's cost thereof and a current price list for such
Inventory, and
(ii) keep complete and accurate records of all other
Collateral.
(b) Each Borrower will prepare a physical listing of all
Inventory, wherever located, at least annually.
Section 9.11 Inspection. The Administrative Agent and each
Lender (by any of their officers, employees or agents) shall have the right,
to the extent that the exercise of such right shall be within the control of a
Borrower, at any time or times to:
(a) (i) Visit the properties of any Borrower or Subsidiary,
inspect the Collateral and the other assets of each Borrower and its
Subsidiaries and inspect and make extracts from the books and records of each
Borrower and its Subsidiaries, and (ii) verify the amount, quantity, value and
condition of, or any other matter relating to, any of the Collateral and in
this connection to review, audit and make extracts from all records and files
related to any of the Collateral, including but not limited to management
letters prepared by independent accountants, all during customary business
hours at such premises and, so long as no Default or Event of Default has
occurred and is continuing, after reasonable efforts to notify the Borrowers'
Representative in advance of such visit. The Lenders shall to the extent
reasonably practicable coordinate their visits and inspections with those of
the Administrative Agent so as to minimize the number of separate visits to
Borrowers' premises.
(b) Discuss each Borrower's and its Subsidiaries' business,
assets, liabilities, financial condition, results of operations and business
prospects, insofar as the same are related to the rights of the Administrative
Agent or the Lenders hereunder or under any of the Loan Documents, with each
Borrower's and its Subsidiaries' principal officers and independent
accountants, and with any other Person.
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Each Borrower will deliver to the Administrative Agent, for the benefit of the
Lenders, any instrument necessary for it to obtain records from any service
bureau maintaining records on behalf of such Borrower.
Section 9.12 Information and Reports.
(a) Schedule of Accounts. The Borrowers shall deliver to the
Administrative Agent on or before the Effective Date and as soon as available
but in any event not later than the 20th day of each month thereafter a
Schedule of Accounts which
(i) shall be as of the last Business Day of the
immediately preceding accounting month,
(ii) shall be reconciled to the Borrowing Base
Certificate as of such last Business Day, and
(iii) shall set forth a detailed aged trial balance of all
its then existing Accounts, specifying the names, addresses and
balance due for each Account Debtor obligated on an Account so listed.
(b) Schedule of Inventory. The Borrowers shall deliver to the
Administrative Agent on or before the Effective Date and as soon as available
but in any event not later than the 20th day of each month thereafter a
Schedule of Inventory which
(i) shall be as of the last Business Day of the
immediately preceding accounting month,
(ii) shall be reconciled to the Borrowing Base
Certificate as of such last Business Day, and
(iii) shall set forth an itemization and description of
the kind, type and quantity of Inventory, the Borrowers' cost thereof
and the location thereof.
(c) Borrowing Base Certificate. The Borrowers shall deliver to
the Administrative Agent as soon as available but in any event not later than
the 20th day of each calendar month a Borrowing Base Certificate prepared as of
the close of the last Business Day of the immediately preceding accounting
month (or other specified date).
The Borrowers may, at their option at any time, submit a Borrowing Base
Certificate supported by a Schedule of Inventory and a Schedule of Accounts,
which shall, for purposes of calculating Availability hereunder, supersede the
next preceding Schedule of Accounts, Schedule of Inventory and Borrowing Base
Certificate delivered hereunder.
(d) Notice of Diminution of Value. Each Borrower shall give
prompt notice to the Administrative Agent of any matter or event which has
resulted in, or may result in, the diminution in excess of $5,000,000 in the
value of any of its Collateral, except for any such diminution in the value of
any Accounts or Inventory in the ordinary course of business which
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has been appropriately reserved against, as reflected in financial statements
previously delivered to the Administrative Agent and the Lenders pursuant to
ARTICLE 11.
(e) Additional Information. The Administrative Agent may in its
reasonable discretion from time to time request that the Borrowers deliver the
schedules and certificates described in SECTIONS 9.12(a), (b), and (c) more or
less often and on different schedules and in greater or less detail than
specified in such Sections and the Borrowers will comply with such requests.
The Borrowers will notify the Administrative Agent promptly, and in any event
within five Business Days after any such account is opened, of the existence,
location, number and title of any bank account of Borrower or Subsidiary not
listed on SCHEDULE 7.1(W). The Borrowers will also furnish to the
Administrative Agent and each Lender such other information with respect to the
Collateral as the Administrative Agent or any Lender may from time to time
reasonably request.
Section 9.13 Power of Attorney. Each Borrower hereby appoints the
Administrative Agent as its attorney in fact, with the power if and when an
Event of Default exists, to endorse the name of such Borrower on any checks,
notes, acceptances, money orders, drafts or other forms of payment or security
that may come into the Administrative Agent's or any Lender's possession, and
if and when an Event of Default exists, to sign the name of such Borrower on
any invoice or ▇▇▇▇ of lading relating to any Account, Inventory or other
Collateral, on any drafts against customers related to letters of credit, on
schedules and assignments of Accounts furnished to the Administrative Agent or
any Lender by the Borrower, on notices of assignment, financing statements and
other public records relating to the perfection or priority of the Security
Interest, verifications of account and notices to or from customers.
Section 9.14 Additional Real Estate and Leases.
(a) Promptly upon a Borrower's acquisition after the Effective
Date (including by reason of an Acquisition after the Effective Date of a
Person that becomes a Borrower) of any fee interest or leasehold interest
(having a duration longer than three years) in any Real Estate having a fair
market value in excess of $1,000,000, such Borrower shall deliver to the
Administrative Agent, at the Administrative Agent's request, for the benefit of
itself as Administrative Agent and the Lenders, an executed Mortgage in form
and substance satisfactory to the Administrative Agent, conveying to the
Administrative Agent, for the benefit of itself and the Lenders, a first
priority Lien on such Real Estate, subject only to Permitted Liens or such
other prior Liens as the Administrative Agent shall consent to in writing. If
requested by the Administrative Agent, such Borrower shall also deliver to the
Administrative Agent at the Borrowers' expense a mortgagee title insurance
policy in favor of the Administrative Agent and the Lenders insuring such
Mortgage to create and convey such Lien, subject only to such exceptions as are
consented to by the Administrative Agent (such consent not be unreasonably
withheld) and shall deliver to the Administrative Agent, at the Administrative
Agent's request, the other items set forth in SECTION 6.1(c) (8) through (11)
with respect to such Real Estate, all in form and substance satisfactory to the
Administrative Agent.
(b) In addition to the Borrowers' obligations pursuant to
SECTION 8.2, promptly upon a Borrower's entry into any lease of Real Estate
(other than a material lease conveying an interest in Real Estate, which shall
be subject to the provisions of SUBSECTION (a) above), such
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Borrower shall, at the request of the Administrative Agent, collaterally assign
to the Administrative Agent, for the benefit of itself and the Lenders, such
Borrower's interest in such lease, in form and substance satisfactory to the
Administrative Agent in its reasonable judgment.
Section 9.15 Assignment of Claims Act. Upon the request of the
Administrative Agent made at any time when government contracts are material to
a Borrower's business, such Borrower shall execute any documents or instruments
and shall take such steps or actions reasonably required by the Administrative
Agent so that all monies due or to become due under any contract with the
United States of America, the District of Columbia or any state, county,
municipality or other domestic or foreign governmental entity, or any
department, agency or instrumentality thereof, will be assigned to the
Administrative Agent, for the benefit of itself and the Lenders, and notice
given thereof in accordance with the requirements of the Assignment of Claims
Act of 1940, as amended, or any other laws, rules or regulations relating to
the assignment of any such contract and monies due to or to become due.
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ARTICLE 10
AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that the Borrowers will jointly and
severally, duly and punctually pay the principal of, and interest on, and all
other amounts payable with respect to, the Loans and all other Secured
Obligations in accordance with the terms of the Loan Documents and that until
the Revolving Credit Facility has been terminated and all the Secured
Obligations have been paid in full, unless the Required Lenders shall otherwise
consent in the manner provided for in SECTION 16.11, each Borrower will, and
will cause each of its Subsidiaries to:
Section 10.1 Preservation of Corporate Existence and Similar
Matters. Preserve and maintain its corporate or other legal existence, rights,
franchises, licenses and privileges in the jurisdiction of its incorporation or
organization and qualify and, except to the extent its failure to do so could
not reasonably be expected to have a Materially Adverse Effect, remain
qualified as a foreign corporation or other entity and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization, PROVIDED,
that each of ▇▇▇▇▇▇▇ Athletic, Inc. and ▇▇▇▇▇▇▇ Athletic West, Inc. may be
dissolved, liquidated, wound up or merged into ▇▇▇▇▇▇▇ or another Loan Party
pursuant to the applicable provisions of the laws of such Loan Party's state of
incorporation. At the time of such dissolution, liquidation, winding up or
merger, all of the assets of such Loan Party will be distributed to ▇▇▇▇▇▇▇ or
another Loan Party.
Section 10.2 Compliance with Applicable Law. Comply in all
material respects with Applicable Law relating to such Borrower or such
Subsidiary, except to the extent being contested in good faith by appropriate
proceedings and for which reserves in respect of such Borrower's or such
Subsidiary's reasonably anticipated liability have been appropriately
established in accordance with GAAP.
Section 10.3 Maintenance of Property. In addition to, and not in
derogation of, the requirements of SECTION 9.7 and of the Security Documents,
(a) protect and preserve, consistent with the Borrowers' past
practices, all properties material to its business, including Copyrights,
Patents, and Trademarks, and maintain in good repair, working order and
condition in all material respects, with reasonable allowance for wear and
tear, all tangible properties, and
(b) from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties
necessary for the conduct of its business, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
Section 10.4 Conduct of Business. At all times carry on its
business in an appropriate manner and engage only in the business(es) described
in SECTION 7.1(f).
Section 10.5 Insurance. Maintain, in addition to the coverage
required by SECTION 9.8 and the Security Documents, insurance with responsible
insurance companies against such risks
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and in such amounts as is customarily maintained by similar businesses or
as may be required by Applicable Law, and from time to time deliver to the
Administrative Agent or any Lender upon its request a detailed list of the
insurance then in effect, stating the names of the insurance companies, the
amounts and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby.
Section 10.6 Payment of Taxes and Claims. Pay or discharge
when due
(a) all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or upon any properties belonging
to it, except that real property ad valorem taxes shall be deemed to have been
so paid or discharged if the same are paid before they become delinquent, and
(b) all lawful claims of materialmen, mechanics, carriers,
warehousemen and landlords for labor, materials, supplies and rentals which, if
unpaid, might become a Lien on any properties of such Borrower;
except that this SECTION 10.6 shall not require the payment or discharge of any
such tax, assessment, charge, levy or claim which is being contested in good
faith by appropriate proceedings and for which reserves in respect of
reasonably anticipated liability have been appropriately established in
accordance with GAAP.
Section 10.7 Accounting Methods and Financial Records. Maintain
a system of accounting, and keep such books, records and accounts (which shall
be true and complete), as may be required or as may be necessary to permit the
preparation of financial statements in accordance with GAAP.
Section 10.8 Use of Proceeds.
(a) Use the proceeds of
(i) the initial Revolving Credit Loan and the Term Loan
to repay Debt as indicated on SCHEDULE 10.8 to the Persons indicated
thereon, and
(ii) all Swingline Loans and all Revolving Credit Loans
made after the Effective Date only for working capital and general
business purposes; and
(b) not use any part of such proceeds to purchase or, to carry or
reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System) or, in any event, for any purpose which would
involve a violation of such Regulation U or of Regulation T or X of such Board
of Governors, or for any purpose prohibited by law or by the terms and
conditions of this Agreement.
Section 10.9 Hazardous Waste and Substances; Environmental
Requirements.
(a) In addition to, and not in derogation of, the requirements of
SECTION 10.2 and of the Security Documents, comply in all material respects
with Environmental Laws and
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Applicable Laws relating to occupational health and safety (except for
instances of noncompliance that are being contested in good faith by
appropriate proceedings if reserves in respect of such Borrower's or such
Subsidiary's reasonably anticipated liability therefor have been appropriately
established), promptly notify the Administrative Agent of its receipt of any
written notice of a violation of any such Environmental Laws or other such
Applicable Laws and indemnify and hold the Administrative Agent and the Lenders
harmless from all loss, cost, damage, liability, claim and expense incurred by
or imposed upon the Administrative Agent or any Lender on account of such
Borrower's failure to perform its obligations under this SECTION 10.9.
(b) Whenever a Borrower gives notice to the Administrative Agent
pursuant to this SECTION 10.9 or otherwise with respect to a matter that
reasonably could be expected to result in material liability to such Borrower
or any Subsidiary under any Environmental Law, the Borrowers shall, at the
Administrative Agent's request and the Borrowers' expense (i) cause an
independent environmental engineer acceptable to the Administrative Agent in
its reasonable judgment to conduct an assessment, including tests where
necessary, of the site where the noncompliance or alleged noncompliance with
Environmental Laws has occurred and prepare and deliver to the Administrative
Agent a report setting forth the results of such assessment, a proposed plan,
if feasible, to bring such Borrower (or such Subsidiary) into compliance with
such Environmental Laws (if such assessment indicates noncompliance) and an
estimate of the costs thereof, and (ii) provide to the Administrative Agent a
supplemental report of such engineer whenever the scope of the noncompliance,
or the response thereto or the estimated costs thereof, shall materially
adversely change.
Section 10.10 Execution of Subsidiary Guaranties; Additional
Borrowers. Upon the request of the Administrative Agent or the Required
Lenders, cause any domestic (United States) Subsidiary which owns assets having
an aggregate value (at the higher of net book value and fair market value)
equal to $1,000,000 or more but is not a Borrower and has not entered into a
Guaranty and a Guarantor Security Agreement to execute and deliver to the
Administrative Agent such joinder agreement with respect to this Agreement
(thereby becoming a Borrower) or such a Guaranty and a Guarantor Security
Agreement and, in either case, authorizing the filing of appropriate Financing
Statements, all in form and substance satisfactory to the Administrative Agent
and the Required Lenders in their reasonable judgment.
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ARTICLE 11
INFORMATION
Until the Revolving Credit Facility has been terminated and all the
Secured Obligations have been paid in full, unless the Required Lenders shall
otherwise consent in the manner set forth in SECTION 16.11, the Borrowers will
furnish to the Administrative Agent and to each Lender at its offices then
designated for notices pursuant to SECTION 16.1, the statements, reports,
certificates, and other information provided for in this ARTICLE 11. All
written information, reports, statements and other papers and data furnished to
the Administrative Agent or any Lender by or at the request of a Borrower,
whether pursuant to this ARTICLE 11 or any other provision of this Agreement or
of any other Loan Document, shall be, at the time the same is so furnished,
complete and correct in all material respects to the extent necessary to give
the Administrative Agent and the Lenders true and accurate knowledge of the
subject matter. Specifically, the Borrowers will so furnish:
Section 11.1 Financial Statements.
(a) Audited Year-End Statements. As soon as available, but in any
event within 90 days after the end of each Fiscal Year, copies of the
consolidating (which may be by strategic business unit, rather than each
individual Subsidiary) and consolidated balance sheets of ▇▇▇▇▇▇▇ and its
Consolidated Subsidiaries as at the end of such Fiscal Year and the related
consolidating and consolidated statements of income, shareholders' equity and
cash flows for such Fiscal Year, in each case setting forth in comparative form
the figures for the previous Fiscal Year, reported on, as to such consolidated
statements, without qualification or a going concern statement, by independent
certified public accountants of nationally recognized standing selected by
▇▇▇▇▇▇▇; PROVIDED that delivery by ▇▇▇▇▇▇▇ of its annual report on Form 10-K
filed with the SEC shall satisfy such requirement as to the consolidated
financial statements;
(b) Monthly Financial Statements. As soon as available after the
end of each month, but in any event within 30 days after the end of each
accounting month (or within 45 days after the end of each accounting month that
is the last month in a Fiscal Quarter), copies of the unaudited consolidating
and consolidated balance sheets of ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries as
at the end of such month and the related unaudited consolidating and
consolidated statements of income and cash flows for ▇▇▇▇▇▇▇ and its
Consolidated Subsidiaries for such month, for the Fiscal Quarter then ended (if
such month is the last month of a Fiscal Quarter) and for the portion of the
Fiscal Year through such month, certified by the Financial Officer as
presenting fairly the financial condition and results of operations of ▇▇▇▇▇▇▇
and its Consolidated Subsidiaries (subject to normal year-end audit
adjustments) for the applicable period(s);
all such financial statements to be complete and correct in all material
respects and prepared in accordance with GAAP (except, with respect to interim
financial statements, for the omission of notes) applied consistently
throughout the periods reflected therein; and
(c) Forecast. As soon as available, but in any event not later
than 30 days after the first day of each Fiscal Year beginning after the
Effective Date, forecasted income statement and
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statement of cash flow and beginning and ending balance sheets for ▇▇▇▇▇▇▇ and
its Consolidated Subsidiaries (on a consolidated and consolidating basis) for
such Fiscal Year.
Section 11.2 Accountants' Certificate. Together with the
financial statements referred to in SECTION 11.1(a), a copy of the certificate
of such accountants addressed to ▇▇▇▇▇▇▇, stating that in making the
examination necessary for the certification of such financial statements,
nothing has come to their attention to lead them to believe that any Default or
Event of Default exists or, if such is not the case, specifying such Default or
Event of Default and its nature.
Section 11.3 Officer's Certificate. At the time that the
Borrowers furnish the financial statements pursuant to SECTION 11.1(b) for any
accounting month that is the last month of a Fiscal Quarter, a certificate of
the Financial Officer in the form attached hereto as EXHIBIT G,
(a) setting forth as at the end of such Fiscal Quarter or Fiscal
Year, as the case may be, the calculations required to establish whether or not
the Borrowers were in compliance with the requirements of SECTIONS 12.1, 12.2,
12.4, 12.5 and 12.6, as at the end of each respective period and the
calculations necessary to determine the Applicable Margin,
(b) stating that the information on the schedules to this
Agreement (other than those that refer specifically to a single date on or
prior to the Effective Date) is complete and accurate as of the date of such
certificate or, if such is not the case, attaching to such certificate updated
schedules in accordance with the provisions of SECTION 11.7, and
(c) stating that, based on a reasonably diligent examination, no
Default or Event of Default exists, or, if such is not the case, specifying
such Default or Event of Default and its nature, when it occurred, whether it
is continuing and the steps being taken by the Borrowers with respect to such
Default or Event of Default.
Section 11.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to a Borrower or its Board of Directors by its independent public
accountants, including, without limitation, any management report.
(b) As soon as practicable and, in any event, when made available
to the holders of the Senior Notes, copies of all financial statements and
reports that a Borrower shall send to its shareholders generally and of all
registration statements and all regular or periodic reports which a Borrower
shall file with the Securities and Exchange Commission or any successor
commission.
(c) From time to time and as soon as reasonably practicable
following each request, such forecasts, data, certificates, reports,
statements, opinions of counsel, documents or further information regarding the
business, assets, liabilities, financial condition, results of operations or
business prospects of any Borrower or Subsidiary as the Administrative Agent
may reasonably request and that a Borrower has or (except in the case of legal
opinions relating to the perfection or priority of the Security Interest)
without unreasonable expense can obtain and without waiver of the
attorney-client or other recognized privilege may disclose, PROVIDED that if
any requested information is not disclosed to the Lenders in order to avoid
waiver or risk of waiver of any such
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privilege, the Borrowers shall notify the Administrative Agent and the Lenders
of such fact. The rights of the Administrative Agent and the Lenders under this
SECTION 11.4 are in addition to and not in derogation of their rights under any
other provision of this Agreement or of any other Loan Document.
(d) If requested by the Administrative Agent or any Lender, the
Borrowers will furnish to the Administrative Agent and the Lenders statements
in conformity with the requirements of Federal Reserve Form U-1 or G-3 referred
to in Regulation U of the Board of Governors of the Federal Reserve System.
Section 11.5 Notice of Litigation and Other Matters. Prompt
notice of:
(a) the commencement, to the extent a Borrower is aware of the
same, of all proceedings and investigations by or before any governmental or
nongovernmental body and all actions and proceedings in any court or before any
arbitrator against or in any other way relating to or affecting the Borrowers,
any of their respective Subsidiaries or any of the Borrowers' or any of their
respective Subsidiaries' properties, assets or businesses, which could
reasonably be expected, singly or in the aggregate, to result in the occurrence
of a Default or an Event of Default, or have a Materially Adverse Effect,
(b) any amendment of the articles of incorporation or by-laws or
other constituent documents of a Borrower or any of its Subsidiaries and any
change in the executive officers of ▇▇▇▇▇▇▇,
(c) any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of a Borrower or any of
its Subsidiaries which has had or could reasonably be expected to have, singly
or in the aggregate, a Materially Adverse Effect,
(d) the receipt of any notice from or the giving of notice to the
trustee under the Senior Note Indenture, together with a copy of such notice,
and
(e) any Default or Event of Default or any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default by a Borrower or any of its
Subsidiaries under any material agreement (other than this Agreement) to which
such Borrower or any of its Subsidiaries is a party or by which such Borrower,
any of its Subsidiaries or any of such Borrower's or any of its Subsidiaries'
properties may be bound.
Section 11.6 ERISA. As soon as possible and in any event within
30 days after a Borrower knows, or has reason to know, that:
(a) any ERISA Event with respect to a Benefit Plan has occurred
or will occur, or
(b) the aggregate present value of the Unfunded Vested Accrued
Benefits under all Benefit Plans is equal to an amount in excess of $5,000,000,
or
(c) a Borrower or any Subsidiary is in "default" (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer
Benefit Plan required by reason of the Borrower's or such Subsidiary's complete
or partial withdrawal (as described in Section 4203 or
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4205 of ERISA) from such Multiemployer Plan, a certificate of the Financial
Officer setting forth the details of such event and the action which is
proposed to be taken with respect thereto, together with any notice or filing
which may be required by the PBGC or other agency of the United States
government with respect to such event.
Section 11.7 Revisions or Updates to Schedules. As part of the
quarterly officer's certificate required pursuant to SECTION 11.3(b), such
revisions or updates to such Schedule(s) as may be necessary or appropriate to
update or correct such Schedule(s), PROVIDED that no such revisions or updates
to any Schedule(s) shall be deemed to have amended, modified or superseded such
Schedule(s) as attached hereto immediately prior to the submission of such
revised or updated Schedule(s), or to have cured any breach of warranty or
representation resulting from the inaccuracy or incompleteness of any such
Schedule(s), unless and until the Required Lenders, in their sole and absolute
discretion, shall have accepted in writing such revisions or updates to such
Schedule(s).
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ARTICLE 12
NEGATIVE COVENANTS
Until the Revolving Credit Facility has been terminated and all the
Secured Obligations have been paid in full, unless the Required Lenders shall
otherwise consent in the manner set forth in SECTION 16.11, the Borrowers will
not directly or indirectly and, in the case of SECTIONS 12.2 through 12.10,
will not permit Subsidiaries to:
Section 12.1 Financial Ratios.
(a) Minimum Fixed Charge Coverage. Permit the Fixed Charge
Coverage Ratio for (i) the period consisting of the first and second Fiscal
Quarters of Fiscal Year 2002, to be less than 0.50 to 1; (ii) the period
consisting of the first, second and third Fiscal Quarters of Fiscal Year 2002,
to be less than 1.0 to 1; (iii) the period of four consecutive Fiscal Quarters
ending on or after the last day of Fiscal Year 2002 and before the last day of
Fiscal Year 2003, to be less than 1.15 to 1; (iv) the period of four
consecutive Fiscal Quarters ending on or after the last day of Fiscal Year 2003
and before the last day of Fiscal Year 2004, to be less than 1.20 to 1; or (v)
the period of four consecutive Fiscal Quarters ending on or after the last day
of Fiscal Year 2004, to be less than 1.25 to 1.
(b) Maximum Leverage Ratio. So long as the Term Loan is
outstanding, permit the Leverage Ratio at any time during any Fiscal Quarter to
be greater than the maximum permitted level as of the last day of the most
recent Fiscal Quarter, determined for each period of four consecutive Fiscal
Quarters ending (i) before the last day of Fiscal Year 2002 to be greater than
4.00 to 1; (ii) on or after the last day of Fiscal Year 2002 and before the
last day of Fiscal Year 2003, to be greater than 3.75 to 1; or (iii) on or
after the last day of Fiscal Year 2003 to be greater than 3.50 to 1.
Section 12.2 Debt. Create, assume, or otherwise become or remain
obligated in respect of, or permit or suffer to exist or to be created, assumed
or incurred or to be outstanding any Debt, except that this SECTION 12.2 shall
not apply to:
(a) Debt of the Loan Parties represented by the Loans and (if
issued) the Notes,
(b) Debt reflected on SCHEDULE 7.1(j) (excluding any such Debt
that is to be paid in full on the Effective Date),
(c) Permitted Purchase Money Debt incurred in an aggregate
principal amount not greater than $15,000,000 in any Fiscal Year,
(d) Debt represented by the Senior Notes and Guarantees thereof
by the Loan Parties (other than ▇▇▇▇▇▇▇),
(e) Subordinated Debt incurred on commercially reasonable terms,
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(f) Interest Rate Agreements, and foreign exchange contracts
entered into in connection with transactions to which ▇▇▇▇▇▇▇ or a Subsidiary
is party and not for speculative purposes,
(g) Unsecured Debt of any Loan Party owing to ▇▇▇▇▇▇▇ or any
Subsidiary, PROVIDED the repayment thereof is subordinated to the prior payment
in full of the Secured Obligations and such Debt is evidenced by a promissory
note that is delivered to the Administrative Agent, at its request, as
Collateral,
(h) Permitted Investments,
(i) Other unsecured Debt incurred on commercially reasonable
terms,
(j) Secured Debt of Foreign Subsidiaries in an aggregate
principal amount at any time outstanding not to exceed the Foreign Subsidiary
Debt Limit,
(k) Secured Debt assumed in connection with and existing on the
date of any Acquisition permitted by SECTION 12.4 and not created in
contemplation thereof, on commercially reasonable terms, in an aggregate
principal amount outstanding at any time not to exceed $15,000,000, and
(l) Debt incurred pursuant to a Qualifying Refinancing,
in each case of incurrence, to the extent that incurrence of such Debt is also
permitted at the time pursuant to the Senior Note Indenture.
Section 12.3 Guaranties. Become or remain liable with respect
to any Guaranty of any obligation of any other Person, except that this
SECTION 12.3 shall not apply to any Loan Party's Guaranty of obligations
permitted hereunder of another Loan Party (including Guarantees of the Senior
Notes by the Loan Parties (other than ▇▇▇▇▇▇▇)) or to Borrower's or
Subsidiary's obligation to indemnify its officers and directors to the fullest
extent permitted by the corporation or other Applicable Law of the jurisdiction
of such Person's organization.
Section 12.4 Investments. After the Agreement Date, make any
Investment, maintain any Investment, or Acquire any Business Unit, EXCEPT that
this SECTION 12.4 shall not apply to:
(a) (i) Permitted Investments or (ii) Investments as to which
each of the following conditions is satisfied:
(A) at least 14 days prior to the closing date
for a proposed Investment, the Borrowers shall provide to the
Administrative Agent and the Lenders notice of such proposed
Investment, together with an information package sufficient
to permit confirmation that the other conditions set forth in
this SECTION 12.4(a)(ii) have been or will be satisfied on
the closing date for such proposed Investment;
(B) the cash portion of the purchase price for
the Investment, when added to the cash portions of the
purchase prices of any other Section 12.4 Investments and the
cash portions of the purchase prices of any Permitted
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Acquisitions closed in the same Fiscal Year, does not exceed
$50,000,000 and Availability, immediately after giving effect
to such Investment, will be not less than $50,000,000;
(C) at least 14 days prior to the closing of
the proposed Investment, the Borrowers shall have
demonstrated, in a manner satisfactory to the Administrative
Agent in its reasonable judgment, compliance by ▇▇▇▇▇▇▇ and
its Consolidated Subsidiaries with the terms and provisions
of this Agreement on a pro forma basis after giving effect to
the proposed Investment as if it had been closed on the first
day of the most recently ended period of 12 consecutive
accounting months of ▇▇▇▇▇▇▇; and
(D) at the time of and after giving effect to
the proposed Investment, no Default or Event of Default shall
exist.
(b) Acquisitions as to which each of the following conditions is
satisfied:
(i) at least 14 days prior to the closing date for the
proposed Acquisition, the Borrowers shall provide to the
Administrative Agent and the Lenders notice of such proposed
Acquisition together with an information package containing the
following documents and confirmation that the other conditions set
forth in this SECTION 12.4(b) have been or will be satisfied on the
closing date for such proposed Acquisition:
(A) the purchase agreement and all other
material documents and agreements relating to such proposed
Acquisition in substantially final form,
(B) all such information as may be necessary to
enable the Administrative Agent, for the benefit of the
Lenders, to obtain a first priority, perfected security
interest (subject only to Permitted Liens) in substantially
all of the assets to be acquired from or owned by the
Acquisition Target immediately upon consummation of the
proposed Acquisition (unless such Acquisition Target will be
a Foreign Subsidiary), and
(C) copies of lien search results for each
jurisdiction in which the Acquisition Target is located, in
which the chief executive office of the Acquisition Target is
located, or in which the Acquisition Target has assets;
(ii) the cash portion of the purchase price for the
Acquisition Target, when added to the cash portions of the purchase
prices of any other Permitted Acquisitions closed in the same Fiscal
Year and the total amount invested in Section 12.4 Investments in such
Fiscal Year does not exceed the sum of (A) $50,000,000 plus (B) up to
100% of the net proceeds of any issuance of Equity Interests of
▇▇▇▇▇▇▇ after the date hereof, if such issuance was intended by
▇▇▇▇▇▇▇ to finance, in part, such purchase price as disclosed in
advance by ▇▇▇▇▇▇▇ to the Lenders, and Availability, immediately after
giving effect to such Acquisition, will be not less than $50,000,000;
(iii) the proposed Acquisition is an arm's length
transaction whereby a Borrower will (A) own directly or indirectly at
least 51% of the Equity Interests in such
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Acquisition Target and will control the governance of such Acquisition
Target or (B) acquire a Business Unit;
(iv) at the time of the proposed Acquisition, the
Acquisition Target shall be engaged in a business which is the same as
or related, ancillary or complementary to any of the businesses of the
Borrowers that are being conducted on the Agreement Date, and a
majority of the board of directors or managers or comparable governing
body of the Acquisition Target shall have approved the transaction;
(v) at least 14 days prior to the consummation of the
proposed Acquisition, the Borrowers shall have demonstrated, in a
manner satisfactory to the Administrative Agent in its reasonable
judgment, (A) positive trailing 12-month pro forma net income before
provision for income taxes, interest expense, depreciation, or
amortization of the Acquisition Target ("Target EBITDA") and (B)
compliance by ▇▇▇▇▇▇▇ and its Consolidated Subsidiaries with the terms
and provisions of this Agreement on a pro forma basis after giving
effect to Permitted Pro Forma Adjustments for the Acquisition Target;
(vi) at least 14 days prior to the consummation of such
Acquisition, the Administrative Agent shall have received such
appraisals of Accounts and Inventory to be acquired and included in
the Borrowing Base as the Administrative Agent in the exercise of its
reasonable credit judgment deems material and environmental site
assessments, in form and substance satisfactory to the Administrative
Agent and the Lenders, with respect to any real property owned by the
Acquisition Target or operated by the Acquisition Target;
(vii) no Debt shall be incurred or assumed by any Borrower
or the Acquisition Target in connection with or as a result of such
proposed Acquisition other than in compliance with the provisions of
SECTION 12.2;
(viii) the Administrative Agent shall have received such
additional instruments, certificates and other documents, including
opinions of counsel, as may be usual or customary in connection with
similar acquisitions and as the Administrative Agent may reasonably
request;
(ix) in the case of an Acquisition of Equity Interests,
the Acquisition Target shall be merged with and into a Borrower or the
Acquisition Target (other than any Acquisition Target that becomes a
Foreign Subsidiary) shall have executed and delivered the Subsidiary
Guaranty (or an effective joinder agreement with respect thereto) and
a Guarantor Security Agreement unless the Borrowers and the
Administrative Agent have agreed that the Acquisition Target is to
become an additional Borrower, in which case the Acquisition Target
and the other Borrowers shall have duly executed and delivered such
acknowledgment or amendment to this Agreement and such additions to or
replacements of outstanding Notes as the Administrative Agent may
require evidencing the Acquisition Target's joint and several
liability for the Secured Obligations as a Borrower under this
Agreement;
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(x) the Administrative Agent, for itself and on behalf
of the Lenders, shall have a first priority Lien (subject only to
Permitted Liens) on the assets of the Acquisition Target (other than
any Acquisition Target that becomes a Foreign Subsidiary) or otherwise
acquired in connection with such Acquisition (other than any such Lien
as to which the Administrative Agent determines in writing that the
benefit thereof is not sufficient to justify the cost of obtaining and
perfecting such Lien); and
(xi) at the time of and after giving effect to the
proposed Acquisition, no Default or Event of Default shall exist.
Section 12.5 Capital Expenditures. Make or incur any Capital
Expenditures (other than Financed Capex) in any Fiscal Year in an amount
greater than $50,000,000, PROVIDED that any unused portion of such allowance up
to $30,000,000 may be carried over but only to the succeeding Fiscal Year. All
Capital Expenditures shall be applied first to reduce the annual $50,000,000
allowance.
Section 12.6 Restricted Distributions and Payments, Etc. Declare
or make any Restricted Distribution or Restricted Payment, except that this
SECTION 12.6 shall not apply to any Permitted Investment or to cash dividends
on its capital stock declared and paid by ▇▇▇▇▇▇▇ in respect of any Fiscal Year
in an amount not to exceed the sum of (a) $5,750,000, and (b) an amount equal
to the lesser of (i) 25% of Excess Cash Flow for such Fiscal Year and (ii)
$19,250,000, PROVIDED that, after giving effect on a pro forma basis to any
such payment, no Default or Event of Default shall exist.
Section 12.7 Merger, Consolidation and Sale of Assets. Merge or
consolidate with any other Person or sell, lease or transfer or otherwise
dispose of any material assets to any Person other than (i) sales of Accounts
to ▇▇▇▇▇▇▇ Financial Services, Inc. or other finance Subsidiary that is a Loan
Party, (ii) sales of Inventory in the ordinary course of business, or
dispositions as permitted pursuant to SECTION 9.7, except that this SECTION
12.7 shall not apply to (a) the merger of any Loan Party or Subsidiary into a
Loan Party, PROVIDED that, ▇▇▇▇▇▇▇ shall be the surviving corporation of any
merger to which it is a party and a Loan Party shall be the surviving entity of
any merger with a Subsidiary that is not a Loan Party, (b) any transfer of
assets to a Loan Party, (c) so long as no Event of Default exists at the time,
the sale, lease, transfer or other disposition by a Borrower of any Assets Held
For Sale, (d) the sale, lease, transfer or other disposition of any Equipment
or Real Estate for at least the fair market value thereof at the time of such
sale, lease, transfer or other disposition and for consideration at least 75%
of which is paid in cash at closing, (e) as to accounts receivable in an
aggregate amount not exceeding $10,000,000 in any Fiscal Year, (1) the sale on
a non-recourse basis as to all Loan Parties, of any account receivable that is
not, immediately prior to such sale, an "Eligible Account" or (2) the sale,
transfer or other disposition of any account receivable that is not,
immediately prior to such sale, an "Eligible Account," pursuant to a factoring
agreement on market terms for "no advance, no ledger debt" arrangements or
otherwise on terms and conditions satisfactory to the Administrative Agent, and
an agreement between the factor a party to such factoring agreement and the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent in the exercise of its reasonable credit judgment, providing for, among
other things, direct remittance by such factor to an account specified by the
Administrative Agent of amounts due from such factor from time to time,
subordination of any claim such factor may otherwise have against the
applicable Loan
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Party arising out of obligations of such Loan Party to other customers of such
factor ("ledger debt"), and the agreement of such factor to make no loans or
advances to such Loan Party, or (f) transfers of assets in connection with any
Investment permitted hereunder.
Section 12.8 Transactions with Affiliates. Effect any transaction
with any Affiliate other than on arms-length terms or otherwise on a basis less
favorable to the Borrowers than would be the case if such transaction had been
effected with a Person not an Affiliate except for (i) Restricted
Distributions, Restricted Payments, Investments and other transactions
expressly permitted hereunder, (ii) compensation arrangements with officers,
employees and directors approved by the compensation or other appropriate
committee of the board of directors of ▇▇▇▇▇▇▇, and (iii) customary directors'
fees and indemnity arrangements.
Section 12.9 Liens. Create, assume or permit or suffer to exist
or to be created or assumed any Lien on any of the Collateral or its other
assets, other than (i) Permitted Liens, (ii) Liens affecting exclusively raw
materials Inventory with an aggregate value at any time not to exceed
$2,000,000 in favor of the suppliers of such Inventory and (iii) Liens securing
Debt permitted by SECTION 12.2(k), which Liens affect solely capital or fixed
assets (and not Accounts or Inventory or proceeds thereof) of the Business Unit
or Person Acquired, existing on the date of the related Acquisition and not
created in contemplation thereof.
Section 12.10 Amendments of Other Agreements. Amend in any way
(a) the Senior Note Indenture (other than to reduce the interest rate or extend
the schedule of payments with respect thereto or to make the covenants less
onerous or restrictive to the Borrowers (or any Subsidiary)) or (b) any
documents governing Subordinated Debt (other than to reduce the interest rate
or extend the schedule of payments or to make the covenants less onerous or
restrictive to the Borrowers (or any Subsidiary)).
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ARTICLE 13
DEFAULT
Section 13.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any governmental or nongovernmental body:
(a) Default in Payment. The Borrowers shall default in any
payment of principal of or interest on any Loan or any Note when and as due
(whether at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrowers shall default in the
payment, as and when due of any Secured Obligation (other than as provided in
CLAUSE (a) above), and such default shall continue for a period of 10 days
after written notice thereof has been given to the Borrower by the
Administrative Agent.
(c) Misrepresentation. Any representation or warranty made or
deemed to be made by a Borrower under this Agreement or any Loan Document, or
any amendment hereto or thereto, shall at any time prove to have been incorrect
or misleading in any material respect when made.
(d) Default in Performance. The Borrowers shall default in the
performance or observance of any term, covenant, condition or agreement to be
performed by any Borrower, contained in
(i) ARTICLES 11 or 12, or SECTION 9.7, 9.8, 9.10, 9.11,
9.12, 10.1 (insofar as it requires the preservation of the existence
of the Loan Parties), or 10.8, and the Administrative Agent shall have
delivered to the Borrowers written notice of such default, or
(ii) this Agreement (other than as specifically provided
for otherwise in this SECTION 13.1) and such default shall continue
for a period of 15 days after written notice thereof has been given to
the Borrower by the Administrative Agent.
(e) Debt Cross-Default. (i) Failure of a Borrower or any of its
Subsidiaries to pay when due or within any applicable grace period any
principal of or interest on any Debt (other than the Loans), or (ii) breach or
default of a Borrower or any of its Subsidiaries with respect to any Debt
(other than the Loans), if the effect of such failure to pay, default or breach
is to cause or to permit the holder or holders then to cause any Debt having an
individual or an aggregate principal amount in excess of $5,000,000 to become
or be declared due prior to its stated maturity, whether or not such failure to
pay, default or breach is waived by such holder or holders.
(f) Other Cross-Defaults. A Borrower or any of its Subsidiaries
shall default in the payment when due, or in the performance or observance, of
any obligation or condition of any agreement, contract or lease (other than
this Agreement, the other Loan Documents or any such
114
agreement, contract or lease relating to Indebtedness for money borrowed) if
the existence of any such defaults, singly or in the aggregate, could
reasonably be expected to have a Materially Adverse Effect.
(g) Voluntary Bankruptcy Proceeding. Any Loan Party shall
(i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect),
(ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws,
(iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator of itself
or of a substantial part of its property, domestic or foreign,
(v) admit in writing its inability to pay its debts as
they become due,
(vi) make a general assignment for the benefit of
creditors, or
(vii) take any corporate action for the purpose of
authorizing any of the foregoing.
(h) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against any Loan Party in any court of competent
jurisdiction seeking
(i) relief under the federal bankruptcy laws (as now or
hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts,
(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of a Loan Party or of all or any substantial
part of the assets, domestic or foreign, of a Loan Party,
and such case or proceeding shall continue undismissed or unstayed for a period
of 60 consecutive calendar days, or an order granting the relief requested in
such case or proceeding against a Loan Party (including, but not limited to, an
order for relief under such federal bankruptcy laws) shall be entered.
(i) Loan Documents. Any event of default or "Event of Default"
under any other Loan Document shall occur.
(j) Failure of Agreements. Any Loan Party shall challenge the
validity and binding effect of any provision of any Loan Document after
delivery thereof hereunder or shall state in
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writing its intention to make such a challenge, or this Agreement or any
Security Document after delivery thereof hereunder, shall for any reason
(except to the extent permitted by the terms hereof or thereof) cease to create
a valid and perfected first priority Lien on, or security interest in, any of
the Collateral purported to be covered thereby in favor of the Administrative
Agent.
(k) Judgment. A final, unappealable judgment or order for the
payment of money in an amount that exceeds the uncontested insurance available
therefor by $5,000,000 or more shall be entered against a Borrower by any court
and such judgment or order shall continue undischarged, unbonded, or unstayed
for 30 days.
(l) Attachment. A warrant or writ of attachment or execution or
similar process which exceeds $5,000,000 in value shall be issued against any
property of a Borrower and such warrant or process shall continue undischarged
or unstayed for 30 days.
(m) ERISA. Any ERISA Event (other than as set forth on
SCHEDULE 7.1(p)) shall occur and be continuing that could reasonably be
expected to result in liability to ▇▇▇▇▇▇▇ or any Related Company of $5,000,000
or more.
(n) Qualified Audits. The independent certified public
accountants retained by the Borrowers shall refuse to deliver an opinion in
accordance with SECTION 11.1(a) with respect to the annual financial statements
of the Borrowers.
(o) Change of Control. ▇▇▇▇▇▇▇ shall cease to own, beneficially
and of record, directly or indirectly, 100% of the outstanding Equity Interests
of each of the other Loan Parties, or such ownership shall cease to vest in it
voting control of each such Loan Party, or a "Change of Control" under and as
defined in the Senior Note Indenture shall occur.
Section 13.2 Remedies.
(a) Automatic Acceleration and Termination of Facilities. Upon
the occurrence of an Event of Default specified in SECTION 13.1(g) or (h), (i)
the principal of and the interest on the Loans and any Note at the time
outstanding, and all other amounts owed to the Administrative Agent or the
Lenders under this Agreement or any of the other Loan Documents and all other
Secured Obligations, shall thereupon become due and payable without
presentment, demand, protest, or other notice of any kind, all of which are
expressly waived, anything in this Agreement or any of the Loan Documents to
the contrary notwithstanding, and (ii) each Facility and the right of the
Borrowers to request Borrowings under this Agreement shall immediately
terminate.
(b) Other Remedies. If any Event of Default shall have occurred,
and during the continuance of any Event of Default, the Administrative Agent
may, and at the direction of the Required Lenders in their sole and absolute
discretion shall, do any of the following:
(i) declare the principal of and interest on the Loans
and any Note at the time outstanding, and all other amounts owed to
the Administrative Agent or the Lenders under this Agreement or any of
the other Loan Documents and all other Secured Obligations, to be
forthwith due and payable, whereupon the same shall immediately become
due and payable without presentment, demand, protest or other notice
of any
116
kind, all of which are expressly waived, anything in this Agreement or
the Loan Documents to the contrary notwithstanding;
(ii) terminate any Facility and any other right of the
Borrowers to request Borrowings hereunder;
(iii) subject to the provisions of SECTION 9.2, notify, or
request the relevant Borrower to notify, in writing or otherwise, any
Account Debtor or obligor with respect to any one or more of the
Accounts to make payment to the Administrative Agent, for the benefit
of the Lenders, or any agent or designee of the Administrative Agent,
at such address as may be specified by the Administrative Agent and
if, notwithstanding the giving of any notice, any Account Debtor or
other such obligor shall make payments to a Borrower, such Borrower
shall hold all such payments it receives in trust for the
Administrative Agent, for the account of the Lenders, without
commingling the same with other funds or property of, or held by, such
Borrower, and shall deliver the same to the Administrative Agent or
any such agent or designee of the Administrative Agent immediately
upon receipt by such Borrower in the identical form received, together
with any necessary endorsements;
(iv) settle or adjust disputes and claims directly with
Account Debtors and other obligors on Accounts for amounts and on
terms which the Administrative Agent considers advisable and in all
such cases only the net amounts received by the Administrative Agent,
for the account of the Lenders, in payment of such amounts, after
deductions of costs and attorneys' fees, shall constitute Collateral
and no Borrower shall have no further right to make any such
settlements or adjustments or to accept any returns of merchandise;
(v) enter upon any premises in which Inventory or
Equipment may be located and, without resistance or interference by
any Borrower, take physical possession of any or all thereof and
maintain such possession on such premises or move the same or any part
thereof to such other place or places as the Administrative Agent
shall choose, without being liable to any Borrower on account of any
loss, damage or depreciation that may occur as a result thereof, so
long as the Administrative Agent shall act reasonably and in good
faith;
(vi) require each Borrower to and each Borrower shall,
without charge to the Administrative Agent or any Lender, assemble the
Inventory and Equipment and maintain or deliver it into the possession
of the Administrative Agent or any agent or representative of the
Administrative Agent at such place or places as the Administrative
Agent may designate and as are reasonably convenient to both the
Administrative Agent and the Borrowers;
(vii) at the expense of the Borrowers, cause any of the
Inventory and Equipment to be placed in a public or field warehouse,
and the Administrative Agent shall not be liable to any Borrower on
account of any loss, damage or depreciation that may occur as a result
thereof, so long as the Administrative Agent shall act reasonably and
in good faith;
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(viii) without notice, demand or other process, and without
payment of any rent or any other charge, enter any premises of any
Borrower and, without breach of the peace, until the Administrative
Agent, on behalf of the Lenders, completes the enforcement of its
rights in the Collateral, take possession of such premises or place
custodians in exclusive control thereof, remain on such premises and
use the same and any of such Borrower's Equipment, for the purpose of
(A) completing any work in process, preparing any Inventory for
disposition and disposing thereof, and (B) collecting any Account, and
the Administrative Agent for the benefit of the Lenders is hereby
granted a license or sublicense and all other rights as may be
necessary, appropriate or desirable to use the Intellectual Property
in connection with the foregoing (including, without limitation, the
right to utilize any logo or other distinctive symbol associated with
the Borrowers in connection with any advertising, promotion or
marketing undertaken by the Administrative Agent or any Lender, and
the rights of such Borrower under all licenses, sublicenses and
franchise agreements shall inure to the Administrative Agent for the
benefit of the Lenders (PROVIDED, HOWEVER, that any use of any
federally registered trademarks as to any goods shall be subject to
the control as to the quality of such goods of the owner of such
trademarks and the goodwill of the business symbolized thereby), and
PROVIDED FURTHER, that such grant of license, sublicense and other
rights in the Intellectual Property is not prohibited by any
contractual restrictions other than such as may have been entered into
for the purpose of evading this provision;
(ix) exercise any and all of its rights under any and all
of the Security Documents;
(x) apply any Collateral consisting of cash to the
payment of the Secured Obligations in any order in which the
Administrative Agent, on behalf of the Lenders, may elect or use such
cash in connection with the exercise of any of its other rights
hereunder or under any of the Security Documents; and
(xi) exercise all of the rights and remedies of a secured
party under the UCC and under any other Applicable Law, including,
without limitation, the right, without notice except as specified
below and with or without taking possession thereof, to sell the
Collateral or any part thereof in one or more parcels at public or
private sale, at any location chosen by the Administrative Agent, for
cash, on credit or for future delivery, and at such price or prices
and upon such other terms as the Administrative Agent may deem
commercially reasonable. Each Borrower agrees that, to the extent
notice of sale shall be required by law, at least 10 days' notice to
the Borrowers of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification, but notice given in any other reasonable manner or at
any other reasonable time shall constitute reasonable notification.
The Administrative Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to
which it was so adjourned;
PROVIDED, HOWEVER, that any disposition of Inventory incorporating copyrighted
designs, bearing a trademark or otherwise utilizing Intellectual Property
licensed by (i) Major League Baseball
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Properties, Inc. shall be subject to Section 13.S of Contract ML No. 3918(rv)
between Major Baseball League Properties, Inc. and ▇▇▇▇▇▇▇, and (ii) ▇▇▇▇
Outdoors, Inc. shall be subject to the Master Copyright License Agreement and
the Trademark License Agreement, each dated April 28, 2000, between ▇▇▇▇
Outdoors, Inc. and ▇▇▇▇▇▇▇.
Section 13.3 Application of Proceeds. All proceeds from each sale
of, or other realization upon, all or any part of the Collateral following an
Event of Default shall be applied or paid over as provided in SECTION 5.10(f).
THE BORROWERS SHALL REMAIN LIABLE JOINTLY AND SEVERALLY AND WILL PAY, ON
DEMAND, ANY DEFICIENCY REMAINING IN RESPECT OF THE SECURED OBLIGATIONS,
TOGETHER WITH INTEREST THEREON AT A RATE PER ANNUM EQUAL TO THE HIGHEST RATE
THEN PAYABLE HEREUNDER ON SUCH SECURED OBLIGATIONS, WHICH INTEREST SHALL
CONSTITUTE PART OF THE SECURED OBLIGATIONS.
Section 13.4 Power of Attorney. In addition to the authorizations
granted to the Administrative Agent under SECTION 9.13 or under any other
provision of this Agreement or of any other Loan Document, during the
continuance of an Event of Default, each Borrower hereby irrevocably
designates, makes, constitutes and appoints the Administrative Agent (and all
Persons designated by the Administrative Agent from time to time) as such
Borrower's true and lawful attorney, and agent in fact, and the Administrative
Agent, or any agent of the Administrative Agent, may, without notice to any
Borrower, and at such time or times as the Administrative Agent or any such
agent in its sole discretion may determine, in the name of a Borrower, the
Administrative Agent or the Lenders,
(a) demand payment of the Accounts,
(b) enforce payment of the Accounts by legal proceedings or
otherwise,
(c) exercise all of the relevant Borrower's rights and remedies
with respect to the collection of Accounts,
(d) settle, adjust, compromise, extend or renew any or all of the
Accounts,
(e) settle, adjust or compromise any legal proceedings brought to
collect the Accounts,
(f) discharge and release the Accounts or any of them,
(g) prepare, file and sign the name of the relevant Borrower on
any proof of claim in bankruptcy or any similar document against any Account
Debtor,
(h) prepare, file and sign the name of the relevant Borrower on
any notice of Lien, assignment or satisfaction of Lien, or similar document in
connection with any of the Collateral,
(i) endorse the name of the relevant Borrower upon any chattel
paper, document, instrument, notice, freight ▇▇▇▇, ▇▇▇▇ of lading or similar
document or agreement relating to the Accounts, the Inventory or any other
Collateral,
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(j) use the stationery of any Borrower and sign the name of the
relevant Borrower to verifications of the Accounts and on any notice to the
Account Debtors,
(k) open the Borrowers' mail,
(l) notify the post office authorities to change the address for
delivery of the Borrowers' mail to an address designated by the Administrative
Agent, and
(m) use the information recorded on or contained in any data
processing equipment and computer hardware and software relating to the
Accounts, Inventory or other Collateral to which any Borrower has access.
Section 13.5 Miscellaneous Provisions Concerning Remedies.
(a) Rights Cumulative. The rights and remedies of the
Administrative Agent and the Lenders under this Agreement, the Notes and each
of the Loan Documents shall be cumulative and not exclusive of any rights or
remedies which it or they would otherwise have. In exercising such rights and
remedies the Administrative Agent and the Lenders may be selective and no
failure or delay by the Administrative Agent or any Lender in exercising any
right shall operate as a waiver of it, nor shall any single or partial exercise
of any power or right preclude its other or further exercise or the exercise of
any other power or right.
(b) Waiver of Marshalling. Each Borrower hereby waives any right
to require any marshalling of assets and any similar right.
(c) Limitation of Liability. Nothing contained in this ARTICLE 13
or elsewhere in this Agreement or in any of the Loan Documents shall be
construed as requiring or obligating the Administrative Agent, any Lender or
any agent or designee of the Administrative Agent or any Lender to make any
demand, or to make any inquiry as to the nature or sufficiency of any payment
received by it, or to present or file any claim or notice or take any action,
with respect to any Account or any other Collateral or the monies due or to
become due thereunder or in connection therewith, or to take any steps
necessary to preserve any rights against prior parties, and the Administrative
Agent, the Lenders and their agents or designees shall have no liability to any
Borrower for actions taken pursuant to this ARTICLE 13, any other provision of
this Agreement or any of the Loan Documents so long as the Administrative Agent
or such Lender shall act in good faith and in a commercially reasonable manner.
(d) Appointment of Receiver. In any action under this ARTICLE 13,
the Administrative Agent shall be entitled during the continuance of an Event
of Default, to the fullest extent permitted by Applicable Law, to the
appointment of a receiver, without notice of any kind whatsoever, to take
possession of all or any portion of the Collateral and to exercise such power
as the court shall confer upon such receiver.
Section 13.6 Trademark License. Each Borrower hereby grants to
the Administrative Agent for its benefit as Administrative Agent and for the
benefit of the Lenders, the nonexclusive right and license to use the
Trademarks described in the Trademark Security Agreement for the purposes (and
subject to the restrictions) set forth in SECTION 13.2(b)(viii) and for the
purposes of enabling the Administrative Agent to realize on the Collateral and
to permit any purchaser of any
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portion of the Collateral through a foreclosure sale or any other exercise of
the Administrative Agent's rights and remedies under this Agreement and the
other Security Documents to use, sell or otherwise dispose of finished goods
Collateral bearing any such Trademark. Such right and license is granted free
of charge, without the requirement that any monetary payment whatsoever be made
to the relevant Borrower or any other Person by the Lenders or the
Administrative Agent or any purchaser or purchasers of the Collateral. Each
Borrower hereby represents, warrants, covenants and agrees that it presently
has, and shall continue to have, the right, without the approval of consent of
others, to grant the license set forth in this SECTION 13.6.
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ARTICLE 14
ASSIGNMENTS
Section 14.1 Successors and Assigns; Participations.
(a) This Agreement shall be binding upon and inure to the benefit
of the Borrowers, the Lenders, the Administrative Agent, all future holders of
the Notes, and their respective successors and assigns, except that the
Borrowers may not assign or transfer any of their rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Each Lender may assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of the Loans at the time owing
to it and the Notes held by it); PROVIDED, HOWEVER, that (i) such Lender shall
first obtain the written consent of (x) the Administrative Agent, which consent
shall not be unreasonably withheld or delayed and (y) except in the case of an
assignment to a Lender or an Affiliate of a Lender, provided no Default or
Event of Default has occurred and is continuing, ▇▇▇▇▇▇▇, which consent shall
not be unreasonably withheld or delayed, (ii) the amount of the Commitment of
the assigning Lender that is subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall in no event be less than
$5,000,000 or less than 100% of the assigning Lender's Commitment if (x) such
assigning Lender's remaining Commitment is less than $5,000,000 or (y) such
assignment is being made at the request of the Borrowers as contemplated
herein, PROVIDED that lesser amounts may be assigned to Lenders and their
Affiliates, (iii) in the case of a partial assignment, the amount of the
Commitment that is retained by the assigning Lender and its Affiliates
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall in no event be less
than the $5,000,000, (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register an Assignment and Acceptance, together with any Note or Notes subject
to such assignment, (v) such assignment shall not, without the consent of the
Borrowers, require the Borrowers to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the
Notes under the blue sky laws of any state, (vi) the representation contained
in SECTION 14.2 hereof shall be true with respect to any such proposed
assignee, and (vii) in the event the Eligible Assignee is a new Lender, the
assigning Lender shall, on the "Effective Date" as defined in the Assignment
and Acceptance, pay to the Administrative Agent solely for its own account an
assignment fee in the amount of $3,500. The assignment fee shall be fully
earned on the "Effective Date" as defined in such Assignment and Acceptance and
shall not be subject to refund or rebate. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date, unless otherwise agreed among
all parties to such Assignment and Acceptance, shall be at least five (5)
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (B) the Lender
assignor thereunder shall, to the extent provided in such assignment, be
released from its obligations under this Agreement.
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(c) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such
Lender assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; (ii) such Lender
assignor makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in SECTION 7.1(n) and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Administrative Agent, such
Lender assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the Commitment and Proportionate
Share of, and principal amount of the Loans and owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrowers, the Administrative Agent and
the Lenders may treat each person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an Eligible Assignee together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance complies with this SECTION 14.1 and has been completed and is in
the form of EXHIBIT D, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register, (iii) give prompt notice
thereof to the Lenders and the Borrowers, and (iv) promptly deliver a copy of
such Acceptance and Assignment to the Borrowers. Within five Business Days
after receipt of notice, the Borrowers shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note
or Notes to the order of such Eligible Assignee in amounts equal to the
Commitment assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and a new Note or Notes to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate
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principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes. Each surrendered Note or Notes shall be cancelled and returned to the
Borrowers.
(f) Each Lender may sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment
hereunder and the Loans owing to it and the Notes held by it); PROVIDED,
HOWEVER, that (i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
the Notes held by it for all purposes of this Agreement, (iv) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement; PROVIDED, that such Lender may agree with any
participant that such Lender will not, without such participant's consent,
agree to or approve any waivers or amendments which would reduce the principal
of or the interest rate on any Loans, extend the term or increase the amount of
the commitments of such participant, reduce the amount of any fees to which
such participant is entitled, extend any scheduled payment date for principal
or release Collateral securing the Loans (other than Collateral disposed of
pursuant to SECTION 9.7 hereof or otherwise in accordance with the terms of
this Agreement or the Security Documents), and (v) any such disposition shall
not, without the consent of the Borrowers, require any Borrowers to file a
registration statement with the Securities and Exchange Commission to apply to
qualify the Loans or the Notes under the blue sky law of any state. The Lender
selling a participation to any Person that is not a Lender or an Affiliate of a
Lender shall use all reasonable efforts to give notice thereof to the Borrowers
PROVIDED that failure to give such notice shall not result in liability to such
Lender. Any purchaser of a participation in any Commitment or Loan shall be
entitled to compensation pursuant to SECTIONS 5.15(b) and (c) to the same
extent as if it were a "Lender" but not in any amount greater than that to
which the Lender from which it purchased such participation is entitled. As
used in this SECTION 14.1(f), "Affiliates" shall include any trust,
partnership, limited liability company or other entity that (x) is organized
under the laws of the United States or any state thereof, (y) is engaged in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (z) is organized, managed or sponsored by any
Lender.
(g) Any Lender may, in connection with any assignment, proposed
assignment, participation or proposed participation pursuant to this SECTION
14.1, disclose to the assignee, participant, proposed assignee or proposed
participant, any information relating to any Borrower furnished to such Lender
by or on behalf of the Borrowers, PROVIDED that, prior to any such disclosure,
each such assignee, proposed assignee, participant or proposed participant
shall agree with the Borrowers or such Lender (which in the case of an
agreement with only such Lender, the Borrowers shall be recognized as a third
party beneficiary thereof) to preserve the confidentiality of any confidential
information relating to any Borrower received from such Lender.
(h) Notwithstanding any provision of the foregoing to the
contrary, any Lender may pledge its interest in any Loan or Note to a Federal
Reserve Bank.
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Section 14.2 Representation of Lenders. Each Lender hereby
represents that it will make each Loan hereunder as a commercial loan for its
own account in the ordinary course of its business; PROVIDED, HOWEVER, that
subject to SECTION 14.1 hereof, the disposition of the Notes or other evidence
of the Secured Obligations held by any Lender shall at all times be within its
exclusive control.
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ARTICLE 15
ADMINISTRATIVE AGENT
Section 15.1 Appointment of Administrative Agent. Each of the
Lenders hereby irrevocably designates and appoints FCC as the Administrative
Agent of such Lender under this Agreement and the other Loan Documents, and
each Lender irrevocably authorizes the Administrative Agent, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and such other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement or the other Loan Documents, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or the other Loan Documents or otherwise
exist against the Administrative Agent.
Section 15.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care.
Section 15.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its trustees, officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable to any Lender (or any
Lender's participants) for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement or the other Loan
Documents (except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any Lender (or any Lender's
participants) for any recitals, statements, representations or warranties made
by a Borrower or any officer thereof contained in this Agreement or the other
Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or the other Loan Documents or for the
existence, value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or any Collateral or
Lien or other interest therein or for any failure of any Borrower to perform
its obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of any
Borrower.
Section 15.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrowers),
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independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred in
accordance with SECTION 14.1. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Agreement and the other
Loan Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and shall be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
Section 15.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent has received notice
from a Lender or a Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
PROVIDED that unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
continue making Revolving Credit Loans to the Borrowers on behalf of the
Lenders in reliance on the provisions of SECTION 5.9 and take such other
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
Section 15.6 Non-Reliance on Administrative Agent, Other Agents
and Other Lenders. Each Lender expressly acknowledges that none of the
Administrative Agent, any Syndication Agent, Documentation Agent or Co-Agent
nor any of its officers, directors, counsel, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
it and that no act by the Administrative Agent, any Syndication Agent,
Documentation Agent or Co-Agent hereafter taken, including any review of the
affairs of any Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent, any Syndication Agent, Documentation
Agent or Co-Agent to any Lender. Each Lender represents to the Administrative
Agent any Syndication Agent, Documentation Agent and Co-Agent that it has,
independently and without reliance upon the Administrative Agent, any
Syndication Agent, Documentation Agent or Co-Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial (and other) condition and creditworthiness of each Borrower and made
its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Administrative Agent, any Syndication Agent, Documentation Agent or
Co-Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
(and other) condition and creditworthiness of
127
each Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder
or under the other Loan Documents, none of the Administrative Agent, any
Syndication Agent, Documentation Agent or Co-Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial (and other) condition
or creditworthiness of any Borrower which may come into the possession of the
Administrative Agent any Syndication Agent, Documentation Agent or Co-Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
Section 15.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
Ratably, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or the other Loan Documents, or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; PROVIDED that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's gross negligence or willful
misconduct or resulting solely from transactions or occurrences that occur at a
time after such Lender has assigned all of its interests, rights and
obligations under this Agreement pursuant to SECTION 14.1 or, in the case of a
Lender to which an assignment is made hereunder pursuant to SECTION 14.1, at a
time before such assignment. The agreements in this subsection shall survive
the payment of the Notes, the Secured Obligations and all other amounts payable
hereunder and the termination of this Agreement.
Section 15.8 Administrative Agent in Its Individual Capacity.
The institution at the time acting as the Administrative Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrowers and their respective Subsidiaries as if it
were not the Administrative Agent hereunder. With respect to its Commitment,
the Loans made or renewed by it and any Note issued to it and any Letter of
Credit issued by it, such institution shall have and may exercise the same
rights and powers under this Agreement and the other Loan Documents and shall
be subject to the same obligations and liabilities as and to the extent set
forth herein and in the other Loan Documents for any other Lender. The terms
"Lenders" and "Required Lenders" or any other term shall, unless the context
clearly otherwise indicates, include such institution in its individual
capacity as a Lender or one of the Required Lenders.
Section 15.9 Successor Administrative Agent.
(a) The Administrative Agent may resign as Administrative Agent
upon thirty (30) days' notice to the Lenders; PROVIDED, HOWEVER that such
resignation shall not take effect until a successor agent has been appointed.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent shall be approved by the
Borrowers, so
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long as no Default or Event of Default has occurred and is continuing (which
approval shall not be unreasonably withheld), whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent, and
the term "Administrative Agent" shall mean such successor agent effective upon
its appointment, and the former Administrative Agent's rights, powers and
duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. If the Required
Lenders have failed to appoint a successor Administrative Agent within 30 days
of the resignation notice given by the Administrative Agent as provided above,
then the Administrative Agent shall be entitled to appoint a successor agent
from among the Lenders. After any Administrative Agent's resignation hereunder
as Administrative Agent, it shall continue to be responsible for (in accordance
with the terms hereof), and the provisions of SECTION 15.7 shall inure to its
benefit as to, any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
(b) It is intended that there shall be no violation of any
Applicable Law denying or restricting the right of financial institutions to
transact business as agent in any jurisdiction. It is recognized that, in case
of litigation under any of the Loan Documents, or in case the Administrative
Agent deems that by reason of present or future laws of any jurisdiction the
Administrative Agent might be prohibited from or restricted in exercising any
of the powers, rights or remedies granted to the Administrative Agent or the
Lenders hereunder or under any of the Loan Documents or from holding title to
or a Lien upon any Collateral or from taking any other action which may be
necessary or desirable hereunder or under any of the Loan Documents, the
Administrative Agent may appoint an additional individual or institution as a
separate collateral agent or co-collateral agent which is not so prohibited
from or restricted in taking any of such actions or exercising any of such
powers, rights or remedies. If the Administrative Agent shall appoint an
additional individual or institution as a separate collateral agent or
co-collateral agent as provided above, each and every remedy, power, right,
claim, demand or cause of action intended by any of the Loan Documents to be
exercised by or vested in or conveyed to the Administrative Agent with respect
thereto shall be exercisable by and vested in such separate collateral agent or
co-collateral agent, but only to the extent necessary to enable such separate
collateral agent or co-collateral agent to exercise such powers, rights and
remedies, and every covenant and obligation necessary to the exercise thereof
by such separate collateral agent or co-collateral agent shall run to and be
enforceable by either of them. Should any instrument from the Lenders be
required by the separate collateral agent or co-collateral agent so appointed
by Administrative Agent in order more fully and certainly to vest in and
confirm to him or it such rights, powers, duties and obligations, including
without limitation indemnification of such collateral agent or co-collateral
agent, any and all of such instruments shall, on request, be executed,
acknowledged and delivered by the Lenders. In case any separate collateral
agent or co-collateral agent, or a successor to either, shall die, become
incapable of acting, or resign, all the estates, properties, rights, powers,
duties and obligations of such separate collateral agent or co-collateral
agent, so far as permitted by Applicable Law, shall vest in and be exercised by
the Administrative Agent until the appointment of a new collateral agent or
successor to such separate collateral agent or co-collateral agent.
Section 15.10 Other Agents. For avoidance of doubt, it is
expressly acknowledged and agreed by the Administrative Agent and each Lender
for the benefit of each of the Syndication Agents, Documentation Agents and
Co-Agents that, other than any rights or obligations
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explicitly reserved to or imposed upon any Syndication Agent, Documentation
Agent or Co-Agent hereunder, none of the Syndication Agents, Documentation
Agents or Co-Agents, in such capacities, has any rights or obligations
hereunder nor shall any of the Syndication Agents, Documentation Agents, or
Co-Agents, in such capacities, be responsible or accountable to any other party
hereto for any action or failure to act hereunder, other than in connection
with such explicitly reserved rights or such obligations (if any) and then only
for claims, damages, losses (other than consequential losses) and other
liabilities arising out of such Person's own gross negligence or willful
misconduct.
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ARTICLE 16
MISCELLANEOUS
Section 16.1 Notices.
(a) Method of Communication. Except as specifically provided in this
Agreement or in any of the Loan Documents, all notices and the communications
hereunder and thereunder shall be in writing or by telephone, subsequently
confirmed in writing. Notices in writing shall be delivered personally or sent
by certified or registered mail, postage pre-paid, or by overnight courier,
telex or facsimile transmission and shall be deemed received in the case of
personal delivery, when delivered, in the case of mailing, when receipted for,
in the case of overnight delivery, on the next Business Day after delivery to
the courier, and in the case of telex and facsimile transmission, upon
transmittal, PROVIDED that in the case of notices to the Administrative Agent,
notice shall be deemed to have been given only when such notice is actually
received by the Administrative Agent. A telephonic notice to the Administrative
Agent, as understood by the Administrative Agent, will be deemed to be the
controlling and proper notice in the event of a discrepancy with or failure to
receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address of which all the other parties
are notified in writing by such first party:
If to the Borrowers: c/▇ ▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & Bird LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Fleet Capital Corporation
Administrative Agent: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Loan Administration Manager
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to: Hunton & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender: At the address of such Lender
set forth on the signature pages hereof or
in an Assignment and Acceptance.
(c) Agent's Office. The Administrative Agent hereby designates its
office located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, or any subsequent office which shall have been specified for such
purpose by written notice to the Borrowers, as the office to which payments due
are to be made and at which Loans will be disbursed.
Section 16.2 Expenses. The Borrowers jointly and severally agree to
pay or reimburse on demand all costs and expenses (1) incurred by the
Administrative Agent or the Arranger in connection with the syndication of the
Revolving Credit Facility and the Term Loan Facility, whether prior to or on or
after the Effective Date and including reasonable fees and disbursements of
counsel, (2) incurred by the Administrative Agent, including, without
limitation, the reasonable fees and disbursements of counsel, in connection
with:
(a) the negotiation, preparation, execution, delivery, administration,
enforcement and termination of this Agreement and each of the other Loan
Documents, whenever the same shall be executed and delivered, including,
without limitation
(i) reasonable out-of-pocket costs and expenses incurred
in connection with the administration and interpretation of this
Agreement and the other Loan Documents;
(ii) the reasonable costs and expenses of appraisals of
the Collateral;
(iii) the reasonable costs and expenses of lien and title
searches and title insurance;
(iv) the reasonable costs and expenses of environmental
reports with respect to the Real Estate; and
(v) taxes, fees and other charges for recording the
Mortgages, filing the Financing Statements and continuations and the
costs and expenses of taking other actions to perfect, protect, and
continue the Security Interest;
(b) filing continuations with respect to Financing Statements and the
costs and expenses of taking other reasonable actions to perfect, protect, and
continue the Security Interest that the Borrowers do not take, after demand by
the Administrative Agent;
(c) the preparation, execution and delivery of any waiver,
amendment, supplement or consent by the Administrative Agent and the Lenders
relating to this Agreement or any of the Loan Documents;
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(d) sums paid or incurred to pay any amount or take any action
required of the Borrowers under the Loan Documents that the Borrowers fail to
pay or take;
(e) costs of inspections and verifications of the Collateral,
including, without limitation, standard per diem fees charged by the
Administrative Agent ($850 per day as of the Agreement Date) and charges for
travel, lodging, and meals for inspections of the Collateral and of the
Borrowers' operations and books and records;
(f) consulting with one or more Persons, including appraisers,
accountants and lawyers, concerning the value of any Collateral for the Secured
Obligations or related to the nature, scope or value of any right or remedy of
the Administrative Agent or any Lender hereunder or under any of the Loan
Documents, including any review of factual matters in connection therewith,
which expenses shall include the fees and disbursements of such Persons;
(g) standard costs and expenses of forwarding loan proceeds and
collecting checks and other items of payment; and
(h) costs and expenses of preserving and protecting the
Collateral; or
(i) incurred by the Administrative Agent or any Lender after an Event
of Default has occurred and is continuing, in connection with costs and
expenses paid or incurred to obtain payment of the Secured Obligations, enforce
the Security Interest, sell or otherwise realize upon the Collateral, and
otherwise enforce the provisions of the Loan Documents, or to prosecute or
defend any claim in any way arising out of, related to or connected with, this
Agreement or any of the Loan Documents, which expenses shall include the
reasonable fees and disbursements of counsel and of experts and other
consultants retained by the Administrative Agent or any Lender.
The foregoing shall not be construed to limit any other provisions of the Loan
Documents regarding costs and expenses to be paid by the Borrowers. Each
Borrower hereby authorizes the Administrative Agent and the Lenders to debit
such Borrower's Loan Account (by increasing the principal amount of the
Revolving Credit Loans) in the amount of any such costs and expenses owed by
such Borrower when due.
Section 16.3 Stamp and Other Taxes. The Borrowers will pay any and all
stamp, registration, recordation and similar taxes, fees or charges and shall
indemnify the Administrative Agent and the Lenders against any and all
liabilities with respect to or resulting from any delay in the payment or
omission to pay any such taxes, fees or charges, which may be payable or
determined to be payable in connection with the execution, delivery,
performance or enforcement of this Agreement and any of the Loan Documents or
the perfection of any rights or security interest thereunder, including,
without limitation, the Security Interest.
Section 16.4 Setoff. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
during the continuance of any Event of Default, each Lender, any participant
with such Lender in the Loans and each Affiliate of each Lender are hereby
authorized by each Borrower at any time or from time to time, without notice to
any Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, Indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and
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any other Indebtedness at any time held or owing by any Lender or any Affiliate
of any Lender or any participant to or for the credit or the account of any
Borrower against and on account of the Secured Obligations irrespective or
whether or not
(a) the Administrative Agent or such Lender shall have made any
demand under this Agreement or any of the Loan Documents, or
(b) the Administrative Agent or such Lender shall have declared
any or all of the Secured Obligations to be due and payable as permitted by
SECTION 13.2 and although such Secured Obligations shall be contingent or
unmatured.
Section 16.5 Litigation. EACH BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT IN WHICH AN
ACTION MAY BE COMMENCED BY OR AGAINST A BORROWER, THE ADMINISTRATIVE AGENT OR
SUCH LENDER ARISING OUT OF THIS AGREEMENT, THE COLLATERAL OR ANY ASSIGNMENT
THEREOF OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN A
BORROWER AND THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY KIND OR NATURE. EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY AGREES THAT THE
FEDERAL COURT OF THE NORTHERN DISTRICT OF GEORGIA OR, AT THE OPTION OF THE
ADMINISTRATIVE AGENT OR ANY LENDER, ANY COURT IN WHICH THE ADMINISTRATIVE AGENT
OR SUCH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS
SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY, SHALL HAVE
NONEXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
ANY BORROWER AND THE ADMINISTRATIVE AGENT OR SUCH LENDER, PERTAINING DIRECTLY
OR INDIRECTLY TO THIS AGREEMENT OR THE LOAN DOCUMENTS OR TO ANY MATTER ARISING
THEREFROM. EACH BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS, HEREBY
WAIVING PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR
PAPERS ISSUED THEREIN AND AGREEING THAT SERVICE OF SUCH SUMMONS AND COMPLAINT
OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH BORROWER AT THE ADDRESS OF SUCH BORROWER SET FORTH IN SECTION
16.1. SHOULD SUCH BORROWER FAIL TO APPEAR OR ANSWER ANY SUMMONS, COMPLAINT,
PROCESS OR PAPERS SO SERVED WITHIN THIRTY (30) DAYS AFTER THE MAILING THEREOF,
IT SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED
AGAINST IT AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR
PAPERS. THE NONEXCLUSIVE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR
THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY
APPROPRIATE JURISDICTION.
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Section 16.6 Waiver of Rights. EACH BORROWER HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY WAIVES ALL RIGHTS WHICH THE BORROWER HAS UNDER
CHAPTER 14 OF TITLE 44 OF THE OFFICIAL CODE OF GEORGIA OR UNDER ANY SIMILAR
PROVISION OF APPLICABLE LAW TO NOTICE AND TO A JUDICIAL HEARING PRIOR TO THE
ISSUANCE OF A WRIT OF POSSESSION ENTITLING THE ADMINISTRATIVE AGENT, OR ANY
LENDER, OR THE SUCCESSORS AND ASSIGNS OF THE ADMINISTRATIVE AGENT, SUCH
CO-AGENT OR SUCH LENDER TO POSSESSION OF THE COLLATERAL UPON EVENT OF DEFAULT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND WITHOUT LIMITING ANY OTHER
RIGHT WHICH THE ADMINISTRATIVE AGENT, OR THE LENDERS MAY HAVE, EACH BORROWER
CONSENTS THAT IF THE ADMINISTRATIVE AGENT, OR ANY LENDER FILES A PETITION FOR
AN IMMEDIATE WRIT OF POSSESSION IN COMPLIANCE WITH SECTIONS ▇▇-▇▇-▇▇▇ AND
▇▇-▇▇-▇▇▇ OF THE OFFICIAL CODE OF GEORGIA OR UNDER ANY SIMILAR PROVISION OF
APPLICABLE LAW, AND THIS WAIVER OR A COPY HEREOF IS ALLEGED IN SUCH PETITION
AND ATTACHED THERETO, THE COURT BEFORE WHICH SUCH PETITION IS FILED MAY
DISPENSE WITH ALL RIGHTS AND PROCEDURES HEREIN WAIVED AND MAY ISSUE FORTHWITH
AN IMMEDIATE WRIT OF POSSESSION IN ACCORDANCE WITH CHAPTER 14 OF TITLE 44 OF
THE OFFICIAL CODE OF GEORGIA OR IN ACCORDANCE WITH ANY SIMILAR PROVISION OF
APPLICABLE LAW, WITHOUT THE NECESSITY OF AN ACCOMPANYING BOND AS OTHERWISE
REQUIRED BY SECTION ▇▇-▇▇-▇▇▇ OF THE OFFICIAL CODE OF GEORGIA OR BY ANY SIMILAR
PROVISION UNDER APPLICABLE LAW. EACH BORROWER HEREBY ACKNOWLEDGES THAT IT HAS
READ AND FULLY UNDERSTANDS THE TERMS OF THIS WAIVER AND THE EFFECT HEREOF.
Section 16.7 Consent to Advertising and Publicity. With the prior
written consent of the Borrowers, which consents shall not be unreasonably
withheld, the Administrative Agent, on behalf of the Lenders, may issue and
disseminate to the public information describing the credit accommodation
entered into pursuant to this Agreement, including the name and address of the
Borrowers, the amount, interest rate, maturity, collateral for and a general
description of the credit facilities provided hereunder and of the Borrowers'
business.
Section 16.8 Reversal of Payments. The Administrative Agent and each
Lender shall have the continuing and exclusive right to apply, reverse and
re-apply any and all payments to any portion of the Secured Obligations in a
manner consistent with the terms of this Agreement. To the extent a Borrower
makes a payment or payments to the Administrative Agent, for the account of the
Lenders, or any Lender receives any payment or proceeds of the Collateral for
the Borrowers' benefit, which payment(s) or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, state or federal law, common law or equitable cause, then,
to the extent of such payment or proceeds received, the Secured Obligations or
part thereof intended to be satisfied shall be revived and continued in full
force and effect, as if such payment or proceeds had not been received by the
Administrative Agent or such Lender.
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Section 16.9 Injunctive Relief. Each Borrower recognizes that, in the
event the Borrowers fail to perform, observe or discharge any of their
obligations or liabilities under this Agreement, any remedy at law may prove to
be inadequate relief to the Administrative Agent and the Lenders; therefore,
each Borrower agrees that if any Event of Default shall have occurred and be
continuing, the Administrative Agent and the Lenders, if the Administrative
Agent or any Lender so requests, shall be entitled to temporary and permanent
injunctive relief without the necessity of proving actual damages.
Section 16.10 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrowers to determine whether it is in compliance with any covenant contained
herein, shall, unless this Agreement otherwise provides or unless Required
Lenders shall otherwise consent in writing, be performed in accordance with
GAAP.
Section 16.11 Amendments.
(a) Except as set forth in SUBSECTION (b) below, any term, covenant,
agreement or condition of this Agreement or any of the other Loan Documents may
be amended or waived, and any departure therefrom may be consented to by the
Required Lenders, if, but only if, such amendment, waiver or consent is in
writing signed by the Required Lenders and, in the case of an amendment (other
than an amendment described in SECTION 16.11(d)), by the Borrowers, PROVIDED
that no such amendment, unless consented to by (i) the Administrative Agent,
shall alter or affect the rights or responsibilities of the Administrative
Agent, (ii) each Issuing Bank, shall alter or affect the rights or
responsibilities of such Issuing Bank in respect of outstanding Letters of
Credit, or (iii) the Swingline Lender, shall alter or affect the rights or
responsibilities of the Swingline Lender, and in any such event, the failure to
observe, perform or discharge any such term, covenant, agreement or condition
(whether such amendment is executed or such waiver or consent is given before
or after such failure) shall not be construed as a breach of such term,
covenant, agreement or condition or as a Default or an Event of Default. Unless
otherwise specified in such waiver or consent, a waiver or consent given
hereunder shall be effective only in the specific instance and for the specific
purpose for which given. The Administrative Agent and the Lenders may require
and charge a fee in connection therewith and consideration of any waiver or
amendment in such amount as shall be determined by the Administrative Agent and
the Required Lenders in their discretion.
(b) (1) Without the prior unanimous written consent of the
Lenders,
(i) no amendment, consent or waiver shall (A) increase the
amount or extend the time of the obligation of any Lender to make
Loans or increase any existing Facility or extend or create any
additional Facility or (B) extend the originally scheduled time or
times of payment of the principal of any Loan or (C) alter (other than
to accelerate or make more frequent) the time or times of payment of
interest on any Loan or of any fees payable for the account of the
Lenders or (D) decrease the amount of the principal of any Loan or the
rate of interest thereon or (E) decrease the amount of any commitment
fee or other fee payable hereunder for the account of the Lenders or
(F) permit any
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subordination of the principal of or interest on any Loan or (G)
permit the amendment of SECTION 5.10(f),
(ii) neither any Borrower nor any Guarantor shall be released
from its liability for the Secured Obligations (except any Guarantor
that is dissolved or liquidated or merged into or consolidated with
another Person other than in a manner prohibited hereunder) nor shall
the Security Interest in the Collateral be subordinated (other than to
Permitted Purchase Money Liens or the interest in Equipment leased by
any Loan Party of the lessor thereof),
(iii) except to the extent expressly provided in SECTION 5.9,
the definition "Borrowing Base" and the defined terms used therein
shall not be amended,
(iv) none of the provisions of this SECTION 16.11, the
definitions "Lenders" or "Required Lenders", or the provisions of
ARTICLE 13 shall be amended, and
(v) neither the Administrative Agent nor any Lender shall
consent to any amendment to or waiver of the amortization, deferral or
subordination provisions of any instrument or agreement evidencing or
relating to obligations of a Borrower that are expressly subordinate
to any of the Secured Obligations if such amendment or waiver would be
adverse to the Lenders in their capacities as Lenders hereunder; and
(2) Without the prior written consent of the Lenders whose
Commitment Percentages are equal to 75% or more, no Collateral shall be
released or substituted other than as expressly permitted pursuant to SECTIONS
8.3, 9.7 and 12.7;
PROVIDED, HOWEVER, that anything herein to the contrary notwithstanding, the
Required Lenders shall have the right to waive any Default or Event of Default
and the consequences hereunder of such Default or Event of Default provided
only that such Default or Event of Default does not arise under SECTION 13.1(g)
or (h) or out of a breach of or failure to perform or observe any term,
covenant or condition of this Agreement or any other Loan Document (other than
the provisions of ARTICLE 13 of this Agreement) the amendment of which requires
the unanimous or "super majority" consent of the Lenders. The Required Lenders
shall have the right, with respect to any Default or Event of Default that may
be waived by them, to enter into an agreement with the Borrower or the
Guarantor providing for the forbearance from the exercise of any remedies
provided hereunder or under the other Loan Documents without thereby waiving
any such Default or Event of Default.
(c) The making of Loans hereunder by the Lenders during the existence
of a Default or Event of Default shall not be deemed to constitute a waiver of
such Default or Event of Default.
(d) Notwithstanding any provision of this Agreement or the other Loan
Documents to the contrary, no consent, written or otherwise, of any Borrower
shall be necessary or required in connection with any amendment to ARTICLE 15
or Section 5.10, and any amendment to such provisions may be effected solely by
and among the Administrative Agent and the Lenders, PROVIDED that no such
amendment shall impose any obligation on the Borrowers.
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Section 16.12 Assignment. All the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that no Borrower may assign or
transfer any of its rights under this Agreement.
Section 16.13 Performance of Borrowers' Duties.
(a) Each Borrower's obligations under this Agreement and each of the
Loan Documents shall be performed by the Borrowers at their sole cost and
expense.
(b) If a Borrower shall fail to do any act or thing which it has
covenanted to do under this Agreement or any of the Loan Documents, the
Administrative Agent, on behalf of the Lenders, may (but shall not be obligated
to) do the same or cause it to be done either in the name of the Administrative
Agent or the Lenders or in the name and on behalf of the Borrowers, and each
Borrower hereby irrevocably authorizes the Administrative Agent so to act.
Section 16.14 Indemnification. Each Borrower agrees, jointly and
severally, to reimburse the Administrative Agent and the Lenders for all costs
and expenses, including reasonable counsel fees and disbursements, incurred,
and to indemnify and hold the Administrative Agent and the Lenders harmless
from and against all losses suffered by, the Administrative Agent or any Lender
in connection with
(a) the exercise by the Administrative Agent or any Lender of any
right or remedy granted to it under this Agreement or any of the Loan
Documents,
(b) any claim, and the prosecution or defense thereof, arising
out of or in any way connected with this Agreement or any of the Loan
Documents, and
(c) the collection or enforcement of the Secured Obligations or
any of them,
other than such costs, expenses and liabilities arising out of the indemnified
Person's gross negligence or willful misconduct; PROVIDED that the Borrowers
shall not be liable for the fees and expenses of more than one separate law
firm of counsel (in addition to any local counsel in the jurisdiction in which
any identified matter is brought) representing the Administrative Agent or the
Lenders who are parties to such proceedings as to any indemnified matter unless
such counsel for such indemnified parties determines in good faith that there
is a conflict which requires separate representation for one or more of the
indemnified parties. The Borrower shall be liable under this Agreement for any
settlement made by any indemnified party with the Borrowers' written consent
(which consent shall not be unreasonably withheld), and the Borrowers agree to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of the settlement of any claim or action with the consent
of the Borrowers.
Section 16.15 All Powers Coupled with Interest. All powers of
attorney and other authorizations granted to the Administrative Agent and the
Lenders and any Persons designated by the Administrative Agent or the Lenders
pursuant to any provisions of this Agreement or any of the Loan Documents shall
be deemed coupled with an interest and shall be irrevocable so long as any of
the Secured Obligations remain unpaid or unsatisfied.
138
Section 16.16 Survival. Notwithstanding any termination of this
Agreement,
(a) until all Secured Obligations have been irrevocably paid in full
or otherwise satisfied, the Administrative Agent, for the benefit of the
Lenders, shall retain its Security Interest and shall retain all rights under
this Agreement and each of the Security Documents with respect to such
Collateral as fully as though this Agreement had not been terminated,
(b) the indemnities to which the Administrative Agent and the Lenders
are entitled under the provisions of this ARTICLE 16 and any other provision of
this Agreement and the Loan Documents shall continue in full force and effect
and shall protect the Administrative Agent and the Lenders against events
arising after such termination as well as before, and
(c) in connection with the termination of this Agreement and the
release and termination of the Security Interests, the Administrative Agent, on
behalf of itself as agent and the Lenders, may require such assurances and
indemnities as it shall reasonably deem necessary or appropriate to protect the
Administrative Agent and the Lenders against loss on account of such release
and termination, including, without limitation, with respect to credits
previously applied to the Secured Obligations that may subsequently be reversed
or revoked.
Section 16.17 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
Section 16.18 Severability of Provisions. Any provision of this
Agreement or any Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 16.19 Governing Law. This Agreement, the Notes and the
Security Documents (except to the extent otherwise expressly set forth therein)
shall be deemed to have been made in the State of Georgia and the validity,
construction, interpretation and enforcement hereof and thereof and the rights
of the parties hereto and thereto shall be determined under, governed by and
construed in accordance with the internal laws of the State of Georgia, without
regard to principles of conflicts of law, except that the waiver contained in
the first sentence of SECTION 16.5 shall be construed in accordance with and
governed by the internal laws of the jurisdiction in which any such action or
proceeding is commenced.
Section 16.20 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and shall be binding upon all parties, their successors and assigns, and all of
which taken together shall constitute one and the same agreement.
Section 16.21 Reproduction of Documents. This Agreement, each of
the Loan Documents and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by the Administrative Agent or any Lender, and
(c) financial statements, certificates and other information previously or
hereafter furnished to the Administrative Agent or any Lender, may be
139
reproduced by the Administrative Agent or such Lender by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar
process and such Person may destroy any original document so produced. Each
party hereto stipulates that, to the extent permitted by Applicable Law, any
such reproduction shall be as admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original shall be
in existence and whether or not such reproduction was made by the
Administrative Agent or such Lender in the regular course of business), and any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 16.22 Term of Agreement. This Agreement shall remain in
effect from the Agreement Date through the Termination Date and thereafter until
all Secured Obligations shall have been irrevocably paid and satisfied in full.
No termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
Section 16.23 Pro-Rata Participation.
(a) Each Lender agrees that if, as a result of the exercise of a right
of setoff, banker's lien or counterclaim or other similar right or the receipt
of a secured claim it receives any payment in respect of the Secured
Obligations, it shall promptly notify the Administrative Agent thereof (and the
Administrative Agent shall promptly notify the other Lenders). If, as a result
of such payment, such Lender receives a greater percentage of the Secured
Obligations owed to it under this Agreement than the percentage received by any
other Lender, such Lender shall purchase a participation (which it shall be
deemed to have purchased simultaneously upon the receipt of such payment) in
the Secured Obligations then held by such other Lenders so that all such
recoveries of principal and interest with respect to all Secured Obligations
owed to each Lender shall be pro rata on the basis of its respective amount of
the Secured Obligations owed to all Lenders, PROVIDED that if all or part of
such proportionately greater payment received by such purchasing Lender is
thereafter recovered by or on behalf of any Borrower from such Lender, such
purchase shall be rescinded and the purchase price paid for such participation
shall be returned to such Lender to the extent of such recovery, but without
interest.
(b) Each Lender which receives such a secured claim 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
16.23 to share in the benefits of any recovery on such secured claim.
(c) Each Borrower expressly consents to the foregoing arrangements and
agrees that any holder of a participation in any Secured Obligation so
purchased or otherwise acquired of which a Borrower has received notice may
exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by the Borrowers to such holder as fully as
if such holder were a holder of such Secured Obligation in the amount of the
participation held by such holder.
Section 16.24 Confidentiality. Neither the Administrative Agent
nor any Lender shall, except with the prior written consent of ▇▇▇▇▇▇▇,
disclose any Confidential Information to any Person, other than (a) to
the Administrative Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors that are involved in the
administration or
140
monitoring of this Agreement and the credit facilities extended hereunder, (b)
to actual or prospective Eligible Assignees and participants, and then only on
a confidential basis, (c) as required by any law, rule or regulation or
judicial process, (d) as requested or required by any state, federal or foreign
authority or examiner regulating such Lender and (e) to any rating agency when
required by it, PROVIDED that, prior to any such disclosure the Administrative
Agent shall make all reasonable efforts to notify ▇▇▇▇▇▇▇ and such rating
agency shall undertake to preserve the confidentiality of any Confidential
Information relating to ▇▇▇▇▇▇▇ and its Subsidiaries received by it from the
Administrative Agent or any Lender. For purposes of this SECTION 16.24,
"Confidential Information" means information that any Loan Party furnishes to
the Administrative Agent or any Lender in a writing designated as
"confidential," but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by the
Administrative Agent or such Lender of its obligations hereunder or that is or
becomes available to the Administrative Agent or such Lender from a source
other than the Loan Parties that is not, to the best of the Administrative
Agent's or such Lender's knowledge, acting in violation of a confidentiality
agreement with a Loan Party.
141
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers in several counterparts all as of
the day and year first written above.
[Corporate Seal] BORROWERS:
Attest: ▇▇▇▇▇▇▇ CORPORATION
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary Senior Vice President and
Chief Financial Officer
[Corporate Seal]
Attest: CROSS CREEK HOLDINGS, INC.
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary Vice President
[Corporate Seal]
Attest: CROSS CREEK APPAREL, LLC
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary Vice President
[Corporate Seal]
Attest: JERZEES APPAREL, LLC
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Manager Manager
142
[Corporate Seal]
Attest: MOSSY OAK APPAREL COMPANY
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary Vice President
[Corporate Seal]
Attest: ▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC.
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary Vice President
[Corporate Seal]
Attest: DESOTO ▇▇▇▇▇, INC.
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary Vice President
[Corporate Seal]
Attest: ▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC.
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Assistant Secretary President
143
[Corporate Seal]
Attest: ▇▇▇▇▇▇▇ APPAREL LLC
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Manager Manager
[Corporate Seal]
Attest: RINTEL PROPERTIES, INC.
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary Vice President
[Corporate Seal]
Attest: ▇▇▇▇▇▇▇ YARN, LLC
By: By:
---------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary Senior Vice President,
▇▇▇▇▇▇▇ Corporation
144
ADMINISTRATIVE AGENT AND LENDER:
FLEET CAPITAL CORPORATION
By:
--------------------------------------
H. ▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: H. ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
145
ANNEX A
COMMITMENTS
LENDER COMMITMENT
------------------------------------ -------------------------------------------------
REVOLVING CREDIT TERM LOAN
---------------- ---------
Fleet Capital Corporation $ 55,384,500.00 $ 4,615,375.00
JPMorgan Chase Bank $ 27,692,400.00 $ 2,307,700.00
SunTrust Bank $ 27,692,400.00 $ 2,307,700.00
The CIT Group/Business Credit, Inc. $ 27,692,400.00 $ 2,307,700.00
Bank of America, N.A. $ 23,076,900.00 $ 1,923,075.00
Wachovia Bank, National Association $ 23,076,900.00 $ 1,923,075.00
General Electric Capital Corporation $ 23,076,900.00 $ 1,923,075.00
Foothill Capital Corporation $ 18,461,400.00 $ 1,538,450.00
GMAC Business Credit, LLC $ 18,461,400.00 $ 1,538,450.00
Transamerica Business Capital Corp. $ 15,692,400.00 $ 1,307,700.00
AmSouth Bank $ 15,692,400.00 $ 1,307,700.00
Comerica Bank $ 11,076,900.00 $ 923,075.00
The Provident Bank $ 9,230,700.00 $ 769,225.00
Aliant Bank $ 3,692,400.00 $ 307,700.00
--------------- --------------
TOTAL $300,000,000.00 $25,000,000.00
=============== ==============
ANNEX B
PRICING MATRIX
REVOLVING CREDIT LOANS TERM LOANS
------------------------- ----------------------
UNUSED
FIXED CHARGE COMMITMENT
TIER COVERAGE RATIO LIBOR BASE RATE LIBOR BASE RATE FEE
---- -------------- ----- --------- ----- --------- ----------
Tier V >2.50:1 1.75% 0.25% 2.25% .75% .375%
>2.00:1 AND
Tier IV <2.50:1 2.00% 0.50% 2.50% 1.00% .375%
-
>1.50:1 AND
Tier III <2.00:1 2.25% 0.75% 2.75% 1.25% .375%
-
>1.25:1 AND
Tier II <1.50:1 2.50% 1.00% 3.00% 1.50% .500%
-
Tier I <1.25:1 2.75% 1.25% 3.25% 1.75% .500%
-
ANNEX C
BORROWERS
▇▇▇▇▇▇▇ Corporation
Cross Creek Holdings, Inc.
Cross Creek Apparel, LLC
Jerzees Apparel, LLC
Mossy Oak Apparel Company
▇▇▇▇▇▇▇ Financial Services, Inc.
DeSoto ▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇ Asset Management, Inc.
▇▇▇▇▇▇▇ Apparel LLC
RINTEL Properties, Inc.
▇▇▇▇▇▇▇ Yarn, LLC
SUBSIDIARY GUARANTORS
▇▇▇▇▇▇▇ Co-op, LLC
▇▇▇▇▇▇▇ Athletic West, Inc.
▇▇▇▇▇▇▇ Athletic, Inc.
4/17/2002 HONG KONG OUTSTANDING IMPORT LETTERS OF CREDIT
ISSUE DTD GUARANTOR BENEFICIARY LC NO. CCY CURRENT BALANCE EXPIRY
USD EQUIVALENT DATE
2/2/2001 ▇▇▇▇▇▇▇ CORPORATION * CY415608 USD * 020420
2/2/2001 ▇▇▇▇▇▇▇ CORPORATION * CY415798 USD * 020531
2/2/2001 ▇▇▇▇▇▇▇ CORPORATION * CY415800 USD * 020531
2/2/2020 ▇▇▇▇▇▇▇ CORPORATION * CY416299 USD * 020701
2/2/2020 ▇▇▇▇▇▇▇ CORPORATION * CY416289 USD * 020410
2/2/2021 ▇▇▇▇▇▇▇ CORPORATION * CY416380 USD * 020701
2/2/2021 ▇▇▇▇▇▇▇ CORPORATION * CY416294 USD * 020531
2/2/2022 ▇▇▇▇▇▇▇ CORPORATION * CY416383 USD * 020701
2/3/2006 ▇▇▇▇▇▇▇ CORPORATION * CY416976 USD * 020515
2/3/2013 ▇▇▇▇▇▇▇ CORPORATION * CY417098 USD * 020501
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417429 USD * 020715
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417424 USD * 020715
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417719 USD * 020615
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417726 USD * 020615
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417709 USD * 020614
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417701 USD * 020617
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417074 USD * 020617
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417124 USD * 020518
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417113 USD * 020517
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417125 USD * 020524
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417127 USD * 020524
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417038 USD * 020515
2/3/2028 ▇▇▇▇▇▇▇ CORPORATION * CY417066 USD * 020607
2/4/2001 ▇▇▇▇▇▇▇ CORPORATION * CY418148 USD * 020626
2/4/2002 ▇▇▇▇▇▇▇ CORPORATION * CY418096 USD * 020722
2/4/2002 ▇▇▇▇▇▇▇ CORPORATION * CY418149 USD * 020716
2/4/2004 ▇▇▇▇▇▇▇ CORPORATION * CY418132 USD * 020721
2/4/2008 ▇▇▇▇▇▇▇ CORPORATION * CY417560 USD * 020721
2/4/2012 ▇▇▇▇▇▇▇ CORPORATION * CY418443 USD * 020624
2/4/2012 ▇▇▇▇▇▇▇ CORPORATION * CY418420 USD * 020607
2/4/2012 ▇▇▇▇▇▇▇ CORPORATION * CY418444 USD * 020624
2/4/2012 ▇▇▇▇▇▇▇ CORPORATION * CY418436 USD * 020624
2/4/2012 ▇▇▇▇▇▇▇ CORPORATION * CY418429 USD * 020607
2/4/2012 ▇▇▇▇▇▇▇ CORPORATION * CY418438 USD * 020624
2/4/2015 ▇▇▇▇▇▇▇ CORPORATION * CY418442 USD * 020724
2/4/2015 ▇▇▇▇▇▇▇ CORPORATION * CY418441 USD * 020724
2/4/2016 ▇▇▇▇▇▇▇ CORPORATION * CY418451 USD * 020628
2/4/2016 ▇▇▇▇▇▇▇ CORPORATION * CY418449 USD * 020628
2/4/2016 ▇▇▇▇▇▇▇ CORPORATION * CY418447 USD * 020628
(*) Material omitted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission (the "SEC"). The omitted material has
been filed separately with the SEC.
4/17/02 FIRST UNION OUTSTANDING IMPORT LETTERS OF CREDIT
APPLICANT BENEFICIARY BENEFICIARY LC NO. USD BALANCE EXPIRY
COUNTRY
JERZEES APPAREL LLC * US CY410672 * 020331
JERZEES APPAREL LLC * US CY412990 * 020430
JERZEES APPAREL LLC * US CY413978 * 020430
JERZEES APPAREL LLC * US CY414046 * 020516
JERZEES APPAREL LLC * US CY414047 * 020531
JERZEES APPAREL LLC * US CY414205 * 020430
▇▇▇▇▇▇▇ ATHLETIC * US CY414934 * 020405
JERZEES APPAREL LLC * US CY415099 * 020506
JERZEES APPAREL LLC * US CY415962 * 020531
JERZEES APPAREL LLC * US CY415965 * 020630
JERZEES APPAREL LLC * US CY417155 * 020731
▇▇▇▇▇▇▇ ATHLETIC * US CY417631 * 020505
JERZEES APPAREL LLC * US CY418456 * 020831
JERZEES APPAREL LLC * US CY418458 * 020831
JERZEES APPAREL LLC * US CY418459 * 020831
(*) Material omitted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission (the "SEC"). The omitted material has
been filed separately with the SEC.
4/17/02 FIRST UNION OUTSTANDING STANDBY L/C'S
CUSTOMER L/C NO L/C AMOUNT ISSUE DATE EXPIRY DATE BENEFICIARY
▇▇▇▇▇▇▇ CORPORATION SM419675 * 1/10/02 6/30/02 *
(*) Material omitted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission (the "SEC"). The omitted material has
been filed separately with the SEC.
EXHIBIT A-1
FORM OF REVOLVING CREDIT NOTE
$ Atlanta, Georgia
------------------ April 18, 2002
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇ CORPORATION, an Alabama
corporation, CROSS CREEK HOLDINGS, INC., a Delaware corporation, CROSS CREEK
APPAREL, LLC, a North Carolina limited liability company, JERZEES APPAREL, LLC,
a Georgia limited liability company, MOSSY OAK APPAREL COMPANY, a Delaware
corporation, ▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC., a Delaware corporation, DESOTO
▇▇▇▇▇, INC., an Alabama corporation, ▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC., a Delaware
corporation, ▇▇▇▇▇▇▇ APPAREL LLC, an Alabama limited liability company, RINTEL
PROPERTIES, INC., a Delaware corporation, and ▇▇▇▇▇▇▇ YARN, LLC, an Alabama
limited liability company (collectively, the "Borrowers"), hereby jointly and
severally unconditionally promise to pay to the order of ____________________
(the "Lender") at the offices of FLEET CAPITAL CORPORATION, a Rhode Island
corporation, as administrative agent for the Lenders (together with its
successor agents, the "Administrative Agent") located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place within the United
States as shall be designated from time to time by the Administrative Agent, on
the Termination Date, the principal amount of ________________________, or such
lesser principal amount as may then constitute the aggregate unpaid balance of
all Revolving Credit Loans made by the Lender to the Borrowers pursuant to the
Loan Agreement (as hereinafter defined), in lawful money of the United States
of America in federal or other immediately available funds.
The Borrowers also jointly and severally unconditionally promise to
pay interest on the unpaid principal amount of this Note outstanding from time
to time for each day from the date hereof until such principal amount is paid
in full (whether upon maturity, by reason of acceleration or otherwise) at the
rates per annum and on the dates specified in the Loan Agreement applicable
from time to time in accordance with the provisions thereof. Nothing contained
in this Note or in the Loan Agreement shall be deemed to establish or require
the payment of a rate of interest in excess of the maximum rate permitted by
any Applicable Law. In the event that any rate of interest required to be paid
hereunder exceeds the maximum rate permitted by Applicable Law, the provisions
of the Loan Agreement relating to the payment of interest under such
circumstances shall control.
This Revolving Credit Note is one of the Revolving Credit Notes
referred to in the Loan and Security Agreement dated as of April 18, 2002 (as
amended, modified, supplemented or restated from time to time, the "Loan
Agreement"; terms defined in the Loan Agreement being used herein as therein
defined) among the Borrowers, the Lender, the other financial institutions
party thereto from time to time as "Lenders," and the Administrative Agent, is
subject to, and entitled to, all provisions and benefits of the Loan Documents,
is secured by the Collateral and other property as provided in the Loan
Documents, is subject to optional and mandatory
A-1-1
prepayment in whole or in part and is subject to acceleration prior to maturity
upon the occurrence of one or more Events of Default, all as provided in the
Loan Documents.
Presentment for payment, demand, protest and notice of demand, notice
of dishonor, notice of non-payment and all other notices are hereby waived by
the Borrowers, except to the extent expressly provided in the Loan Agreement.
No failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
The Borrowers hereby jointly and severally agree to pay on demand all
costs and expenses incurred in collecting the Secured Obligations hereunder or
in enforcing or attempting to enforce any of the Lender's rights hereunder,
including, but not limited to, reasonable attorneys' fees and expenses actually
incurred if collected by or through an attorney, whether or not suit is filed.
THE PROVISIONS OF SECTIONS 16.5 OF THE LOAN AGREEMENT ARE HEREBY
EXPRESSLY INCORPORATED HEREIN.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
[signatures appear on following pages]
A-1-2
IN WITNESS WHEREOF, the undersigned have executed this Revolving
Credit Note as of the day and year first above written.
BORROWERS:
▇▇▇▇▇▇▇ CORPORATION
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CROSS CREEK HOLDINGS, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CROSS CREEK APPAREL, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DESOTO ▇▇▇▇▇, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
JERZEES APPAREL, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MOSSY OAK APPAREL COMPANY
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
A-1-3
RINTEL PROPERTIES, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ APPAREL LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ YARN, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF SWINGLINE NOTE
$20,000,000.00 Atlanta, Georgia
April 18, 2002
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇ CORPORATION, an Alabama
corporation, CROSS CREEK HOLDINGS, INC., a Delaware corporation, CROSS CREEK
APPAREL, LLC, a North Carolina limited liability company, JERZEES APPAREL, LLC,
a Georgia limited liability company, MOSSY OAK APPAREL COMPANY, a Delaware
corporation, ▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC., a Delaware corporation, DESOTO
▇▇▇▇▇, INC., an Alabama corporation, ▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC., a Delaware
corporation, ▇▇▇▇▇▇▇ APPAREL LLC, an Alabama limited liability company, RINTEL
PROPERTIES, INC., a Delaware corporation, and ▇▇▇▇▇▇▇ YARN, LLC, an Alabama
limited liability company (collectively, the "Borrowers"), hereby jointly and
severally unconditionally promise to pay to the order of FLEET CAPITAL
CORPORATION (the "Swingline Lender") at the offices of FLEET CAPITAL
CORPORATION, a Rhode Island corporation, as administrative agent for the
Lenders (together with its successor agents, the "Administrative Agent")
located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place within the United States as shall be designated from time to time
by the Administrative Agent, on the Termination Date, the principal amount of
TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00), or such lesser principal
amount as may then constitute the aggregate unpaid balance of all Swingline
Loans made by the Swingline Lender to the Borrowers pursuant to the Loan
Agreement (as hereinafter defined), in lawful money of the United States of
America in federal or other immediately available funds.
The Borrowers also jointly and severally unconditionally promise to
pay interest on the unpaid principal amount of this Note outstanding from time
to time for each day from the date hereof until such principal amount is paid
in full (whether upon maturity, by reason of acceleration or otherwise) at the
rates per annum and on the dates specified in the Loan Agreement applicable
from time to time in accordance with the provisions thereof. Nothing contained
in this Note or in the Loan Agreement shall be deemed to establish or require
the payment of a rate of interest in excess of the maximum rate permitted by
any Applicable Law. In the event that any rate of interest required to be paid
hereunder exceeds the maximum rate permitted by Applicable Law, the provisions
of the Loan Agreement relating to the payment of interest under such
circumstances shall control.
This Note is the Swingline Note referred to in the Loan and Security
Agreement dated as of April 18, 2002 (as amended, modified, supplemented or
restated from time to time, the "Loan Agreement"; unless otherwise defined
herein, terms defined therein being used in this Note as therein defined), by
and among the Borrowers, the Swingline Lender, the other financial institutions
party thereto from time to time as "Lenders" and the Administrative Agent, is
subject to, and entitled to, all provisions and benefits of the Loan Documents,
is secured by the Collateral and other property as provided in the Loan
Documents, is subject to optional and
A-2-1
mandatory prepayment in whole or in part and is subject to acceleration prior
to maturity upon the occurrence of one or more Events of Default, all as
provided in the Loan Documents.
Presentment for payment, demand, protest and notice of demand, notice
of dishonor, notice of non-payment and all other notices are hereby waived by
the Borrowers, except to the extent expressly provided in the Loan Agreement.
No failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
The Borrowers hereby jointly and severally agree to pay on demand all
costs and expenses incurred in collecting the Secured Obligations hereunder or
in enforcing or attempting to enforce any of the Swingline Lender's rights
hereunder, including, but not limited to, reasonable attorneys' fees and
expenses actually incurred if collected by or through an attorney, whether or
not suit is filed.
THE PROVISIONS OF SECTIONS 16.5 OF THE LOAN AGREEMENT ARE HEREBY
EXPRESSLY INCORPORATED HEREIN.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
[signatures appear on following pages]
A-2-2
IN WITNESS WHEREOF, the undersigned have executed this Swingline Note
as of the day and year first above written.
BORROWERS:
▇▇▇▇▇▇▇ CORPORATION
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CROSS CREEK HOLDINGS, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CROSS CREEK APPAREL, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DESOTO ▇▇▇▇▇, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
JERZEES APPAREL, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MOSSY OAK APPAREL COMPANY
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
A-2-3
RINTEL PROPERTIES, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ APPAREL LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ YARN, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
A-2-4
EXHIBIT B
FORM OF TERM NOTE
$ Atlanta, Georgia
------------------- April 18, 2002
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇▇ CORPORATION, an Alabama
corporation, CROSS CREEK HOLDINGS, INC., a Delaware corporation, CROSS CREEK
APPAREL, LLC, a North Carolina limited liability company, JERZEES APPAREL, LLC,
a Georgia limited liability company, MOSSY OAK APPAREL COMPANY, a Delaware
corporation, ▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC., a Delaware corporation, DESOTO
▇▇▇▇▇, INC., an Alabama corporation, ▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC., a Delaware
corporation, ▇▇▇▇▇▇▇ APPAREL LLC, an Alabama limited liability company, RINTEL
PROPERTIES, INC., a Delaware corporation, and ▇▇▇▇▇▇▇ YARN, LLC, an Alabama
limited liability company (collectively, the "Borrowers"), hereby jointly and
severally unconditionally promise to pay to the order of
_______________________ (the "Lender") at the offices of Fleet Capital
Corporation, as administrative agent for the Lenders (together with its
successor agents, the "Administrative Agent") located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place within the United States
as shall be designated from time to time by the Administrative Agent, the
principal amount of _______________________________, constituting the Term Loan
made by the Lender to the Borrowers pursuant to the Loan Agreement (as
hereinafter defined), in lawful money of the United States of America in
federal or other immediately available funds, in such amounts and on the dates
specified in the Loan Agreement applicable from time to time in accordance with
the provisions thereof.
The Borrowers also jointly and severally unconditionally promise to
pay interest on the unpaid principal amount of this Note for each day from the
date hereof until payment thereof in full (whether upon maturity, by reason of
acceleration or otherwise) at the rates per annum and on the dates specified in
the Loan Agreement applicable from time to time in accordance with the
provisions thereof. Nothing contained in this Note or in the Loan Agreement
shall be deemed to establish or require the payment of a rate of interest in
excess of the maximum rate permitted by any Applicable Law. In the event that
any rate of interest required to be paid hereunder exceeds the maximum rate
permitted by Applicable Law, the provisions of the Loan Agreement relating to
the payment of interest under such circumstances shall control.
This Note is one of the Term Notes referred to in the Loan and
Security Agreement dated as of April 18, 2002 (as amended, modified,
supplemented or restated from time to time, the "Loan Agreement"; terms defined
in the Loan Agreement being used herein as therein defined) among the
Borrowers, the Lender, the other financial institutions party thereto from time
to time as "Lenders," and the Administrative Agent, is subject to, and entitled
to, all provisions and benefits of the Loan Documents, is secured by the
Collateral and other property as provided in the Loan Documents, is subject to
optional and mandatory prepayment in whole or in part and is subject to
acceleration prior to maturity upon the occurrence of one or more Events of
Default, all as provided in the Loan Documents.
B-1
Presentment for payment, demand, protest and notice of demand, notice
of dishonor, notice of non-payment and all other notices are hereby waived by
the Borrowers, except to the extent expressly provided in the Loan Agreement.
No failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
The Borrowers hereby jointly and severally agree to pay on demand all
costs and expenses incurred in collecting the Secured Obligations hereunder or
in enforcing or attempting to enforce any of the Term Loan Lender's rights
hereunder, including, but not limited to, reasonable attorneys' fees and
expenses actually incurred if collected by or through an attorney, whether or
not suit is filed.
THE PROVISIONS OF SECTIONS 16.5 OF THE LOAN AGREEMENT ARE HEREBY
EXPRESSLY INCORPORATED HEREIN.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
[signatures appear on following pages]
B-2
IN WITNESS WHEREOF, the undersigned have executed this Term Note as of
the day and year first above written.
BORROWERS:
▇▇▇▇▇▇▇ CORPORATION
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CROSS CREEK HOLDINGS, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CROSS CREEK APPAREL, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DESOTO ▇▇▇▇▇, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
JERZEES APPAREL, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
MOSSY OAK APPAREL COMPANY
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
B-3
RINTEL PROPERTIES, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ APPAREL LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇▇ YARN, LLC
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
B-4
EXHIBIT C
FORM OF BORROWING BASE CERTIFICATE
Reference is made to the Loan and Security Agreement dated as of April
18, 2002 (as the same may be amended, modified, supplemented or restated from
time to time, the "Loan Agreement"), by and among ▇▇▇▇▇▇▇ Corporation, an
Alabama corporation, and certain of its Subsidiaries (collectively, the
"Borrowers"), the financial institutions party thereto from time to time (the
"Lenders"), and Fleet Capital Corporation, a Rhode Island corporation, as
administrative agent for the Lenders (together with its successor agents, the
"Administrative Agent"). Terms used herein that are defined in the Loan
Agreement are used with the meanings therein ascribed to them.
This certificate is furnished to the Administrative Agent by the
Borrowers, in accordance with their obligations under Section 6.1(c)(17) or
Section 9.12(c) of the Loan Agreement. The Borrowers certify that (a) the
computation of the Borrowing Base attached hereto complies with all the
applicable provisions of the Loan Agreement, and (b) the data has been prepared
from the books of account and records of the Borrowers maintained in accordance
with GAAP (or other applicable accounting principles contemplated by the Loan
Agreement) and present fairly and accurately the status of the Borrowers'
accounts as at _____________, 200__.
Dated as of ________ __, ▇▇▇▇
▇▇▇▇▇▇▇ CORPORATION, for itself and on
behalf of the other Borrowers
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
C-1
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
_______________________, Assignee
Dated ____________ ___, ____
Reference is made to the Loan and Security Agreement dated as of April
18, 2002 (as amended, modified, supplemented or restated, the "Loan
Agreement"), by and among ▇▇▇▇▇▇▇ CORPORATION, an Alabama corporation, CROSS
CREEK HOLDINGS, INC., a Delaware corporation, CROSS CREEK APPAREL, LLC, a North
Carolina limited liability company, JERZEES APPAREL, LLC, a Georgia limited
liability company, MOSSY OAK APPAREL COMPANY, a Delaware corporation, ▇▇▇▇▇▇▇
FINANCIAL SERVICES, INC., a Delaware corporation, DESOTO ▇▇▇▇▇, INC., an
Alabama corporation, ▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC., a Delaware corporation,
▇▇▇▇▇▇▇ APPAREL LLC, an Alabama limited liability company, RINTEL PROPERTIES,
INC., a Delaware corporation, and ▇▇▇▇▇▇▇ YARN, LLC, an Alabama limited
liability company (collectively, the "Borrowers"), the financial institutions
party thereto from time to time (the "Lenders"), and FLEET CAPITAL CORPORATION,
a Rhode Island corporation, as administrative agent for the Lenders (together
with its successor agents, the "Administrative Agent"). Unless otherwise
defined herein, capitalized terms used herein that are defined in the Loan
Agreement are used with the meanings therein ascribed to them.
_________________________________________________________ ("Assignor")
and ____________________________________ ("Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to such of the Assignor's rights and obligations as a Lender
under the Loan Agreement as of the Effective Date (as hereinafter defined) as
represent the percentage interest in each Commitment and amount of each
outstanding Loan set forth on EXHIBIT A attached hereto and made a part hereof.
The Assignee shall have no interest in any interest that is payable with
respect to a period prior to the Effective Date.
2. The Assignor (i) represents that as of the date hereof, its
Commitments with respect to each Facility and the outstanding balance of each
Loan held by it, all or any portion of which is the subject of this Assignment
and Acceptance and the aggregate amount of its interest in Letter of Credit
Obligations (in each case unreduced by any assignments thereof which have not
yet become effective), is set forth on EXHIBIT B, (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim, lien or encumbrance; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers, the performance or observance by the
D-1
Borrowers of any of their obligations under the Loan Agreement or any other
instrument or document furnished pursuant thereto.
3. Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Loan Agreement, together with copies of the most
recent financial statements delivered pursuant to SECTION 11.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(iii) agrees that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Agreement; (iv)
confirms that it is an Eligible Assignee; (v) appoints and authorizes the
Administrative Agent to take such action as administrative agent on its behalf
and to exercise such powers under the Loan Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (vi) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Loan Agreement
are required to be performed by it as a Lender; (vii) specifies as its address
for notices the office set forth beneath its name on the signature pages
hereof; (viii) agrees that it will keep confidential all information with
respect to the Borrowers furnished to it by or on behalf of the Borrowers or
Assignor in accordance with the provisions of SECTION 16.24 of the Loan
Agreement; (ix) agrees and covenants that the lesser of (A) $5,000,000 and (B)
the aggregate outstanding principal amount of the Revolving Credit Loans, Term
Loans and Letter of Credit Obligations assigned to Assignee hereby shall not be
assigned, participated or otherwise transferred by Assignee to any other
assignee; and (x) represents and warrants that it is organized under the laws
of a jurisdiction in the United States of America.
4. The effective date for this Assignment and Acceptance shall
be ____________ ___, _____ [or such earlier date as the Administrative Agent
gives notice of to Assignor and Assignee(1)] (the "Effective Date"). Following
the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance and recording by the Administrative Agent.
5. Upon such acceptance and recording, from and after the
Effective Date, (i) Assignee shall be a party to the Loan Agreement and, to the
extent provided in this Assignment and Acceptance, shall have the rights and
obligations of a Lender thereunder, and (ii) Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Agreement.
6. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to Assignee. Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective
---------
(1) The date five Business Days after the date of delivery of
this Assignment and Acceptance to the Administrative Agent.
D-2
Date or with respect to the making of this Assignment and Acceptance directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia, without
reference to any provision which would render such choice of law invalid.
8. The Assignee acknowledges that pursuant to SECTION 5.13(F) of
the Loan Agreement, the Assignee may elect, by notice to the Administrative
Agent, not to receive Notes evidencing its Loans and to rely exclusively on the
provisions of SECTION 5.7 thereof, PROVIDED that upon the Assigneee's request,
and subject to such reasonable notice and other requirements as the
Administrative Agent may impose, the Borrowers shall execute and deliver Notes
in conformity with the provisions of SECTIONS 2.4 and 4.4 of the Loan
Agreement.
D-3
ASSIGNOR:
-------------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ASSIGNEE:
-------------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address:
-------------------------------------------
-------------------------------------------
Accepted this ____ day of
, .
------------- --------
Fleet Capital Corporation, as
Administrative Agent
By:
---------------------------
Name:
----------------------
Title:
---------------------
[Provided that no Event of Default exists, and the
assignment is not to a Lender or an Affiliate of a
Lender:
Consented to this ___ day of
, .
------------- --------
▇▇▇▇▇▇▇ Corporation, as Borrowers' Representative
By:
---------------------------
Name:
----------------------
Title: ]
---------------------
D-4
EXHIBIT A
PERCENTAGE OF COMMITMENT ASSIGNED
D-5
EXHIBIT B
COMMITMENT
D-6
EXHIBIT E-1
FORM OF CONFIRMATION OF NOTICE OF BORROWING
(Revolving Credit Loan)
[Date]
Fleet Capital Corporation, as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned Borrowers' Representative, ▇▇▇▇▇▇▇ Corporation, an
Alabama corporation, refers to the Loan and Security Agreement dated as of
April 18, 2002 (as amended, modified, supplemented or restated from time to
time, the "Loan Agreement"; capitalized terms defined therein are used herein
as therein defined) between the undersigned, the other Borrowers, the Lenders
and Fleet Capital Corporation, as administrative agent (the "Administrative
Agent") for the Lenders, and hereby gives the Administrative Agent notice,
irrevocably, pursuant to Section 2.2 of the Loan Agreement that the undersigned
hereby requests a Borrowing under the Loan Agreement, and in that connection
sets forth below the information relating to such Borrowing (the "Proposed
Loan") as required by Section 2.2 of the Loan Agreement:
(1) The Business Day on which the Proposed Loan is to be
made is __________, [200__].
(2) The aggregate amount of the Proposed Loan is
$___________.
(3) The Proposed Loan is a [Base Rate/LIBOR] Revolving
Credit Loan.
(4) If the Proposed Loan is a LIBOR Loan, the Interest
Period applicable thereto is ____ month(s).
As to such Proposed Loan, the undersigned hereby certifies that the
following statements are true on the date hereof, and will be true on the date
of the Proposed Loan:
(A) the representations and warranties required to be
made under the Loan Agreement are true and correct in all material
respects, before and after giving effect to the Proposed Loan and to
the application of the proceeds therefrom, as though made on and as of
such dates; and
E-1-1
(B) no event has occurred and is continuing, or would
result from such Proposed Loan or from the application of the proceeds
therefrom, which constitutes a Default or Event of Default.
Very truly yours,
▇▇▇▇▇▇▇ CORPORATION, for itself
and as Borrowers' Representative
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
E-1-2
EXHIBIT E-2
FORM OF CONFIRMATION OF NOTICE OF BORROWING
(Swingline Loan)
[Date]
Fleet Capital Corporation,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned Borrowers' Representative, ▇▇▇▇▇▇▇ Corporation, an
Alabama corporation, refers to the Loan and Security Agreement dated as of
April 18, 2002 (as amended, modified, supplemented or restated from time to
time, the "Loan Agreement"; capitalized terms defined therein are used herein
as therein defined) between the undersigned, the other Borrowers, the Lenders,
and Fleet Capital Corporation as administrative agent (the "Administrative
Agent") for the Lenders and hereby gives the Administrative Agent notice,
irrevocably, pursuant to Section 2A.2 of the Loan Agreement that the
undersigned hereby requests a Borrowing under the Loan Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Loan") as required by Section 2A.2 of the Loan Agreement:
(1) The Business Day on which the Proposed Loan is to be made is
__________, [200__].
(2) The aggregate amount of the Proposed Loan is $___________.
As to such Proposed Loan, the undersigned hereby certifies that the
following statements are true on the date hereof, and will be true on the date
of the Proposed Loan:
(A) the representations and warranties required to be
made under the Loan Agreement are true and correct in all material
respects, before and after giving effect to the Proposed Loan and to
the application of the proceeds therefrom, as though made on and as of
such dates; and
E-2-1
(B) no event has occurred and is continuing, or would
result from such Proposed Loan or from the application of the proceeds
therefrom, which constitutes a Default or Event of Default.
Very truly yours,
▇▇▇▇▇▇▇ CORPORATION, for itself
and as Borrowers' Representative
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
E-2-2
EXHIBIT F
FORM OF NOTICE
OF CONVERSION OR CONTINUATION
_______________ ___, 200_
Fleet Capital Corporation,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned Borrowers' Representative, ▇▇▇▇▇▇▇ Corporation, an
Alabama corporation, refers to the Loan and Security Agreement dated as of
April 18, 2002 (the "Loan Agreement", the terms defined therein being used
herein as therein defined), between the undersigned, the other Borrowers, the
Lenders and Fleet Capital Corporation, as administrative agent for the Lenders,
and hereby gives you notice, irrevocably, pursuant to Section 5.3 of the Loan
Agreement that the undersigned hereby requests [the conversion] [the
continuation] of Loans described below (the "Existing Loan"), and in that
connection sets forth below the information relating to such [conversion]
[continuation] (the "Proposed [Conversion] [Continuation]") as required by
Section 5.3 of the Loan Agreement:
(1) The Existing Loan is a [Revolving Credit Loan] [Term
Loan] and the Type of the Existing Loan is [a Base Rate] [LIBOR] Loan.
(2) [If the Existing Loan is a LIBOR Loan, the last day
of the Interest Period applicable to the Existing Loan is __________,
[200__], which is the date of the Proposed
[Continuation][Conversion].] [If the Existing Loan is a Base Rate
Loan, the Business Day of the Proposed Conversion of the Existing Loan
into a LIBOR Loan is ____________, [200__.]
(3) The aggregate outstanding principal amount of the
[Revolving Credit Loan] [portion of the Term Loan] comprising the
Existing Loan is $_____________.
(4) The Loan comprising the Existing Loan is to be
[converted into] [continued as] [a Base Rate Loan] [a LIBOR Loan] [in
its entirety] [to the extent of $__________ of the principal amount
thereof] [and [converted into] [continued as] [a Base Rate Loan] [a
LIBOR Loan] to the extent of $__________ of the principal amount
thereof].
F-1
[(5) The Interest Period for each Loan [converted into]
[continued as] a LIBOR Loan is [1, 2, 3 or 6] month(s).]
As to each Proposed [Conversion] [Continuation] of any Loan [into]
[as] a LIBOR Loan, the Borrowers hereby represent and warrant that as of the
date hereof no Default or Event of Default has occurred and is continuing.
Very truly yours,
▇▇▇▇▇▇▇ CORPORATION, for itself
and as Borrowers' Representative
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT G
FORM OF COVENANT COMPLIANCE CERTIFICATE
The undersigned, ____________________, the ___________________ of
▇▇▇▇▇▇▇ Corporation, an Alabama corporation (the "Corporation"), hereby
certifies to the Administrative Agent under and as defined in the Loan and
Security Agreement dated as of April 18, 2002 (as amended, modified,
supplemented or restated and in effect from time to time, the "Loan
Agreement"), in accordance with the provisions of SECTION 11.3 of the Loan
Agreement, that:
1. As of _____________________ [date of last day of Fiscal
Quarter or Fiscal Year] (the "Report Date"), the Borrowers were/were not in
compliance with the covenants set forth in SECTIONS 12.1, 12.2, 12.4, 12.5,
12.6 AND 12.10 of the Loan Agreement, as detailed on the worksheet attached
hereto as EXHIBIT A.
2. All Schedules to the Loan Agreement are correct and accurate
as of the date hereof after taking into account the revised and/or supplemental
information reflected on the Schedules attached hereto as EXHIBIT B.
3. Based on a reasonably diligent examination sufficient to
enable me to make an informed statement, no Default or Event of Default exists
as of the date hereof [other than:(1)].
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of ___________, 200__.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
---------------
(1) Specify such Default or Event of Default and its nature, when
it occurred, whether it is continuing and the steps being taken by the
Borrowers with respect to such Default or Event of Default.
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EXHIBIT H
FORM OF SUBSIDIARY GUARANTY
Dated as of April 18, 2002
_______________________________ a _______________ [corporation/limited
liability company] (the "Guarantor"), hereby agrees in favor of FLEET CAPITAL
CORPORATION, a Rhode Island corporation, in its capacity as administrative
agent for the financial institutions party from time to time to the Loan
Agreement (as defined below), as follows:
Section 1. Cross References and Definitions.
(a) Reference is made to the Loan and Security Agreement, dated
as of April 18, 2002 (the same as it may hereafter be amended, modified,
supplemented or restated from time to time being referred to as the "Loan
Agreement"), by and among ▇▇▇▇▇▇▇ Corporation, an Alabama corporation, CROSS
CREEK HOLDINGS, INC., a Delaware corporation, CROSS CREEK APPAREL, LLC, a North
Carolina limited liability company, JERZEES APPAREL, LLC, a Georgia limited
liability company, MOSSY OAK APPAREL COMPANY, a Delaware corporation, ▇▇▇▇▇▇▇
FINANCIAL SERVICES, INC., a Delaware corporation, DESOTO ▇▇▇▇▇, INC., an
Alabama corporation, ▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC., a Delaware corporation,
▇▇▇▇▇▇▇ APPAREL LLC, an Alabama limited liability company, RINTEL PROPERTIES,
INC., a Delaware corporation, and ▇▇▇▇▇▇▇ YARN, LLC, an Alabama limited
liability company (each a "Borrower" and collectively, the "Borrowers"), the
Lenders parties thereto from time to time and the Administrative Agent.
(b) For the purposes of this Guaranty:
"Administrative Agent" and "Lender" each have the meaning
ascribed to such term in the Loan Agreement and "Lender" also means
and includes each subsequent holder of a Note.
"Obligor" means any obligor, maker, endorser, acceptor,
surety or guarantor (other than the Guarantor), from time to time, of
any Secured Obligation.
(c) Unless otherwise defined in this Guaranty, terms used herein
which are defined in the Loan Agreement shall have the same meaning herein as
therein ascribed to them.
Section 2. Guaranty.
(a) Guaranty. In consideration of the execution and delivery by
the Lenders of the Loan Agreement and as a condition precedent to the making or
continued making of loans and other financial accommodations to the Borrowers
by the Lenders thereunder, the Guarantor, as primary obligor and not as surety
merely, hereby guarantees absolutely and unconditionally to the Administrative
Agent and the Lenders the due and punctual payment, when and as due (whether
upon demand, at maturity, by reason of acceleration or otherwise), and
performance of
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all Secured Obligations, whether now existing or hereafter arising (hereinafter
referred to as the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including, but not limited to, reasonable legal fees and
disbursements) which may be incurred by the Administrative Agent or any Lender
in enforcing their respective rights under this Guaranty. The liability of the
Guarantor under this Guaranty is primary, unlimited and unconditional, and
shall be enforceable before, concurrently or after any claim or demand is made
or suit is filed against any Borrower or any other Obligor and before,
concurrently or after any proceeding by the Administrative Agent against any
Collateral or other security for the Guaranteed Obligations and shall be
effective regardless of the solvency or insolvency of any Borrower or any other
Obligor at any time, the extension or modification of any of the Guaranteed
Obligations by operation of law or the subsequent reorganization, merger or
consolidation of any Borrower or any change in its composition, nature,
ownership, personnel or location, and this Guaranty shall be a continuing
guaranty of any and all notes given in extension or renewal of the Guaranteed
Obligations. The Guarantor acknowledges, agrees and confirms that this is a
guaranty of payment and not of collection only and that demand for payment may
be made hereunder on any number of occasions in the amount of all or any
portion of the Guaranteed Obligations then due and no single demand shall
exhaust the rights of the Administrative Agent or the Lenders hereunder.
Further, the Guarantor hereby agrees that all proceeds of Collateral owned by
it shall be applied to the Secured Obligations on a daily basis as and when
received by the Administrative Agent as provided in the Loan Agreement as fully
as if such Collateral and proceeds were owned by the Borrowers.
(b) Payment by Guarantor. If the Borrowers shall fail to pay,
when due and payable, any Guaranteed Obligation, the Guarantor will, without
demand or notice, immediately pay the same to the Administrative Agent for the
account of the Lenders. If any Guaranteed Obligation would be subject to
acceleration, but such acceleration is enjoined or stayed, the Guarantor will
to the extent permitted by Applicable Law, purchase such Guaranteed Obligation
for a price equal to the outstanding principal amount thereof, plus such
accrued interest and other amounts as would have been payable had such
Guaranteed Obligation been paid or prepaid at the time of such purchase. All
payments by the Guarantor under this Guaranty shall be made without any setoff,
counterclaim or deduction whatsoever, and in the same currency and funds as are
required to be paid by the Borrowers.
(c) Waiver. The Guarantor waives without any requirement of any
notice to or further assent by the Guarantor, to the fullest extent permitted
by Applicable Law, (i) diligence, presentment, demand, protest and notice of
any kind whatsoever, (ii) any requirement that the Administrative Agent or any
Lender exhaust any right or take any action against any Obligor or other Person
or any of the Collateral or other security for the Guaranteed Obligations,
including, without being limited to, pursuant to O.C.G.A. ▇▇.▇▇. 10-7-23 and
10-7-24, (iii) the benefit of all principles or provisions of Applicable Law
which are or might be in conflict with the terms of this Guaranty, (iv) notice
of acceptance hereof, (v) notice of Default or Event of Default, (vi) notice of
any and all favorable and unfavorable information, financial or other, about
the Borrowers, any Obligor or other Person, heretofore, now or hereafter
learned or acquired by the Administrative Agent or any Lender, (vii) all other
notice to which such Guarantor or Obligor might otherwise be entitled, (viii)
all defenses, set-offs and counterclaims of any kind whatsoever (but not the
right to bring an independent action), (ix) notice of the existence or creation
of any Guaranteed Obligations, (x) notice of any alteration, amendment,
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increase, extension or exchange of any of the Guaranteed Obligations, (xi)
notice of any amendments, modifications or supplements to the Loan Agreement or
any Loan Document (other than this Guaranty), (xii) notice of any release of
Collateral or other security for the Guaranteed Obligations or any compromise
or settlement with respect thereto, (xiii) all diligence in collection or
protection of or realization upon the Collateral or any of the Guaranteed
Obligations, and (xiv) the right to require the Administrative Agent to proceed
against any Obligor.
(d) Consents. The Guarantor consents without the requirement of
any notice to or further assent by the Guarantor, to the fullest extent
permitted by Applicable Law, that (i) the time of payment of any Guaranteed
Obligation may be extended, (ii) any provision of the Loan Agreement or any
Loan Document (other than this Guaranty) may be amended, waived or modified,
(iii) any Obligor may be released from its obligations or other Obligors or
Guarantors substituted therefor or added, (iv) any Collateral or other property
now or hereafter securing the Guaranteed Obligations may be released,
exchanged, substituted, compromised or subordinated in whole or in part or any
security may be added, and (v) the Administrative Agent may proceed against the
Guarantor or any Obligor without proceeding against any other Obligor.
(e) Guarantor Bound. The Guarantor will remain bound under this
Guaranty notwithstanding any changes, extensions, exchanges, substitutions,
releases, compromises, subordinations, amendments, waivers or modifications or
any other circumstances, whether or not referred to in CLAUSES (C) OR (D)
above, which might otherwise constitute a legal or equitable discharge of a
guaranty.
(f) Absolute Obligation. The obligations of the Guarantor
hereunder are irrespective of and shall not be dependent upon or affected by
(i) the validity, legality or enforceability of the Loan Agreement, the Note(s)
or any Loan Document, (ii) the existence, value or condition of any of the
Collateral or other security for the Guaranteed Obligations, (iii) the
validity, perfection or priority of the Security Interest in any of the
Collateral or other security, (iv) any action or failure to take action by the
Administrative Agent or any Lender under, or with respect to, the Loan
Agreement, the Note(s), any Loan Document, any Guaranteed Obligation, any
Obligor or any of the Collateral or other security, (v) any other dealings
among the Administrative Agent, the Lenders, the Borrowers or any Obligor, or
(vi) any present or future law or order of any government or agency thereof
purporting to reduce, amend or otherwise affect any obligations of the
Borrowers or any Guarantor.
(g) Recovery of Payments. In the event that any or all of the
amounts guaranteed by the Guarantor are or were paid by the Borrowers or any
other Obligor or are or were paid or reduced by application of the proceeds of
any Collateral, and all or any part of such payment is recovered from the
Administrative Agent or any Lender under any applicable bankruptcy or
insolvency law or otherwise, the liability of the Guarantor under this Guaranty
shall continue and remain in full force and effect to the extent permitted by
Applicable Law.
(h) Subordination of Reimbursement, Subrogation. Any and all
rights of subrogation, indemnification, reimbursement, contribution or similar
rights which the Guarantor may have against any Borrower or any other Obligor
or any Collateral or otherwise shall be subordinate to any and all rights which
the Lender may have against such Borrower or such
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Obligor or any such Collateral pursuant to the Loan Agreement, the Notes or any
of the Loan Documents and the Guarantor will not enforce or attempt to enforce
any such right of subrogation, indemnification, reimbursement, contribution or
any similar right until all amounts guaranteed by it have been indefeasibly
paid in full. The provisions of this SUBSECTION (H) shall survive the
termination of this Guaranty.
(i) Binding Nature of Certain Adjudications. Upon written notice
of the institution by the Administrative Agent or any Lender of any action or
proceedings, legal or otherwise, for the adjudication of any controversy with
the Borrowers (or any of them), the Guarantor will be conclusively bound by the
adjudication in any such action or proceedings and by a judgment, award or
decree entered therein. The Guarantor waives the right to assert in any action
or proceeding brought by the Administrative Agent or any Lender, upon the Loan
Agreement, the Note(s) or any Loan Document, any offsets or counterclaims which
such Guarantor may have with respect thereto (other than (subject to SECTION
2(G)) payment of the Secured Obligations).
(j) Validity and Enforceability of Guaranty. The Guarantor will
take all action required so that the guaranty contained herein will at all
times be a binding obligation of the Guarantor enforceable in accordance with
its terms.
Section 3. Representations and Warranties. The Guarantor
represents and warrants to the Administrative Agent and the Lenders as follows:
(a) Organization; Power; Qualification. The Guarantor is a
corporation or limited liability company, duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
formation, has the power and authority to own its properties and to carry on
its business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization except to the extent its failure to be so
qualified or authorized could not reasonably be expected to have a Materially
Adverse Effect.
(b) Authorization of Guaranty. The Guarantor has the right and
power and has taken all necessary action to authorize it to guarantee the
Guaranteed Obligations hereunder and to execute, deliver and perform this
Guaranty in accordance with its terms. This Guaranty has been duly executed and
delivered by the duly authorized officers of the Guarantor and is a legal,
valid and binding obligation of the Guarantor enforceable in accordance with
its terms.
(c) Compliance of Guaranty With Laws, Etc. The execution,
delivery and performance of this Guaranty in accordance with its terms and the
guaranty of the Guaranteed Obligations hereunder do not and will not, by the
passage of time, the giving of notice or otherwise, (i) require any Government
Approval or violate any Applicable Law relating to the Guarantor, (ii) conflict
with, result in a breach of or constitute a default under (A) the articles of
incorporation or by-laws or any other constituent documents of the Guarantor,
(B) any material provisions of any indenture, agreement or other instrument to
which the Guarantor is a party or by which it or any of its properties may be
bound or (C) any Governmental Approval, or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property
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now owned or hereafter acquired by the Guarantor, except Liens created pursuant
to the Loan Documents.
(d) Financial Interest. The Guarantor is a Wholly Owned
Subsidiary of ▇▇▇▇▇▇▇ Corporation and is engaged in a related and mutually
interdependent business with the Borrowers and will derive indirect financial
and business advantages and benefits from the Loans and other financial
accommodations that the Lenders may make to the Borrowers
Section 4. Litigation. THE GUARANTOR, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT
IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST THE GUARANTOR ARISING OUT
OF THIS GUARANTY OR OUT OF THE GUARANTOR SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT AMONG OR BETWEEN THE GUARANTOR, ANY LENDER AND THE ADMINISTRATIVE
AGENT, OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN THE
GUARANTOR AND THE ADMINISTRATIVE AGENT OR ANY LENDER OF ANY KIND OR NATURE. THE
GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY AGREE THAT THE
SUPERIOR COURT OF THE STATE OF GEORGIA SITTING IN ▇▇▇▇▇▇ COUNTY AND THE UNITED
STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF GEORGIA, AND ANY APPELLATE
COURT FROM ANY THEREOF, SHALL HAVE NONEXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE GUARANTOR AND THE ADMINISTRATIVE
AGENT OR SUCH LENDER, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR THE
LOAN DOCUMENTS OR TO ANY MATTER ARISING THEREFROM. THE GUARANTOR EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURTS, HEREBY WAIVING PERSONAL SERVICE OF THE
SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN AND AGREEING
THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE GUARANTOR AT THE ADDRESS
OF THE GUARANTOR SET FORTH HEREIN. THE NONEXCLUSIVE CHOICE OF FORUM SET FORTH
IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT
OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY APPROPRIATE JURISDICTION.
Section 5. Right of Setoff. Upon the occurrence and during
the continuation of any Event of Default, each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the Guarantor against any
and all of the Guaranteed Obligations now or hereafter existing, whether or not
demand shall have been made under this Guaranty and although such Guaranteed
Obligations may be contingent and unmatured. Each Lender agrees promptly to
notify the Guarantor after any such setoff and application made by such Lender,
provided that the failure to give such notice shall not affect
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the validity of such setoff and application. The rights of each Lender under
this Section are in addition to any other rights and remedies (including,
without limitation, other rights of setoff) which such Lender may have.
Section 6. Titles and Captions. Titles and captions of Sections
and subsections in this Guaranty are for convenience only, and neither limit
nor amplify the provisions of this Guaranty.
Section 7. Severability of Provisions. Any provision of this
Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 8. Governing Law. This Guaranty shall be construed in
accordance with and governed by the law of the State of Georgia, without regard
to principles of conflicts of laws.
Section 9. Counterparts. This Guaranty may be executed in any
number of counterparts, each of which shall be deemed to be an original and
shall be binding upon all parties, their successors and assigns.
Section 10. Miscellaneous. This Guaranty and the other
agreements contemplated by this Guaranty supersede all prior negotiations,
agreements and understandings, and constitute the entire agreement between the
parties with respect to the subject matter thereof. All the provisions of this
Guaranty shall be binding upon the Guarantor and its successors and assigns,
and each Lender may assign or transfer any of its rights under this Guaranty in
connection with the transfer of its interests under the Loan Agreement in
accordance with the terms thereof. Any term, covenant, agreement or condition
of this Guaranty may be amended or waived, and any departure therefrom may be
consented to, if, but only if, such amendment, waiver or consent is in writing
and is signed by the Required Lenders and, in the case of any amendment, also
by the Guarantor. Unless otherwise specified in such waiver or consent, a
waiver or consent given hereunder shall be effective only in the instance and
for the specific purpose for which given and no waiver of any condition, or of
the breach of any term, provision, warranty, representation, agreement or
covenant contained in this Guaranty, whether by conduct or otherwise, in any
one or more instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach or a waiver of any other condition or of
the breach of any other term, provision, warranty, representation, agreement or
covenant contained in this Guaranty. The failure of the Administrative Agent or
any Lender at any time or times to require performance of any provisions of
this Guaranty shall in no manner affect the right to enforce the same. Whenever
the context so requires, the singular number shall include the plural and the
plural shall include the singular, and the gender of any pronoun shall include
the other genders.
Section 11. Notices. All notices and other communications
provided for hereunder shall be in writing and given in accordance with the
provisions of SECTION 16.1 of the Loan Agreement and such provisions are hereby
incorporated herein by this reference as if fully
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set forth herein. The address of the Guarantor for such purposes shall be as
set forth on the signature page hereof, or such other address notice of which
is given in accordance with the provisions hereof, and the address of the
Lenders shall be as provided from time to time pursuant to SECTION 16.1 of the
Loan Agreement. The Guarantor agrees that if any notification of intended
disposition of Collateral or other security for the Guaranteed Obligations or
of any other act by the Administrative Agent or any Lender is required by law
and a specific time period is not stated therein, such notification given in
accordance with the provisions of this SECTION 11, at least ten (10) days prior
to such disposition or act shall be deemed reasonable and properly given.
Section 12. Limitation on Guaranteed Obligations. The
obligations of the Guarantor hereunder shall be limited to an aggregate amount
that is equal to the largest amount that would not render the obligations of
the Guarantor hereunder subject to avoidance under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Bankruptcy Code (Title 11 of the United States Code) or any comparable
provision of Applicable Law.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed by its duly authorized officer(s) as of the day and year first written
above.
[CORPORATE SEAL] [GUARANTOR]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address:
Attest:
--------------------------- -----------------------------------------
Name:
--------------------- -----------------------------------------
Title:
-------------------- -----------------------------------------
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EXHIBIT I
FORM OF GUARANTOR SECURITY AGREEMENT
THIS GUARANTOR SECURITY AGREEMENT, dated as of April 18, 2002
(hereinafter, the "Agreement"), is made by ____________________________, a
______________________ corporation (the "Grantor"), in favor of FLEET CAPITAL
CORPORATION, a Rhode Island corporation, in its capacity as administrative
agent (the "Administrative Agent") for the financial institutions (the
"Lenders") party from time to time to the Loan and Security Agreement dated as
of April 18, 2002 (the same as it may be amended, modified or supplemented or
restated, the "Loan Agreement") by and among ▇▇▇▇▇▇▇ Corporation, an Alabama
corporation ("▇▇▇▇▇▇▇"), and certain of its Subsidiaries (each, a "Borrower"
and collectively, the "Borrowers"), the Lenders, and the Administrative Agent
(the Administrative Agent, together with any successor agent under the Loan
Agreement, also referred to as the "Secured Party" herein). Unless otherwise
defined herein, terms defined in the Loan Agreement are used herein as therein
defined.
Preliminary Statement
As a condition precedent to the Lenders' making loans and other
financial accommodations to the Borrowers under the Loan Agreement, the
obligations of the Borrowers under which have been guaranteed by the Grantor
pursuant to a Guaranty dated as of even date herewith (the principal, interest,
fees, expenses and other indebtedness, obligations and liabilities of Grantor
under said Guaranty, (including, without being limited to, the Guaranteed
Obligations as defined therein) and this Agreement and all other indebtedness,
obligations and liabilities of the Grantor to the Secured Party and the
Lenders, whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising under the Loan Documents, being
hereinafter referred to collectively as the "Secured Obligations"), the
Administrative Agent and the Lenders have required that Grantor shall have
granted the security interest contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to continue to make loans and other financial accommodations
to the Borrowers, the Grantor hereby agrees as follows:
SECTION 1. Grant of Security. As security for payment and
performance of the Secured Obligations, the Grantor hereby conveys, mortgages,
pledges, assigns, transfers, sets over, grants and delivers to the Secured
Party a continuing security interest in all of the Grantor's right, title and
interest in and to the following property, wherever located, whether now owned
or existing or hereafter acquired or arising (hereinafter referred to as the
"Collateral"):
(a) (i) all rights to the payment of money or other forms of
consideration of any kind (whether classified under the UCC as accounts,
chattel paper, general intangibles or otherwise) including, but not limited to,
accounts receivable, letter-of-credit rights, chattel paper, tax refunds,
insurance proceeds, any rights under contracts not yet earned by performance
and not evidenced by an instrument or chattel paper, notes, drafts,
instruments, documents,
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acceptances and all other debts, obligations and liabilities in whatever form
from any Person, (ii) all guaranties, security, other supporting obligations
and Liens securing payment thereof, (iii) all goods, whether now owned or
hereafter acquired, and whether sold, delivered, undelivered, in transit or
returned, which may be represented by, or the sale or lease of which may have
given rise to, any such right to payment or other debt, obligation or
liability, and (iv) all proceeds of any of the foregoing (the foregoing,
collectively, "Accounts"),
(b) (i) all inventory, (ii) all goods intended for sale or lease
or for display or demonstration, (iii) all work-in-process, (iv) all raw
materials and other materials and supplies of every nature and description used
or which might be used in connection with the manufacture, packing, shipping,
advertising, selling, leasing or furnishing of goods or services or otherwise
used or consumed in the conduct of business, and (v) all documents evidencing
and general intangibles relating to any of the foregoing (the foregoing,
collectively, "Inventory"),
(c) (i) all machinery, apparatus, equipment, motor vehicles,
tractors, trailers, rolling stock, fittings, fixtures and other tangible
personal property (other than Inventory) of every kind and description, (ii)
all tangible personal property (other than Inventory) and fixtures used in the
Grantor's business operations or owned by the Grantor or in which the Grantor
has an interest, and (iii) all parts, accessories and special tools and all
increases and accessions thereto and substitutions and replacements therefor,
excluding, however, any such property that is subject to a lease or Lien
permitted to exist by this Agreement, the terms of which prohibit the creation
of the Security Interest therein, for so long as such prohibition remains in
effect (the foregoing, collectively, "Equipment"),
(d) all general intangibles, choses in action and causes of
action and all other intangible personal property of every kind and nature
(other than Accounts), including, without limitation, commercial tort claims,
Intellectual Property, Equity Interests, corporate or other business records,
inventions, designs, blueprints, plans, specifications, trade secrets,
goodwill, computer software, customer lists, registrations, licenses,
franchises, tax refund claims, reversions or any rights thereto and any other
amounts payable to such Person from any Benefit Plan, Multiemployer Plan or
other employee benefit plan, rights and claims against carriers and shippers,
rights to indemnification, business interruption insurance and proceeds
thereof, property, casualty or any similar type of insurance and any proceeds
thereof, the beneficiary's interest in proceeds of insurance covering the lives
of key employees and any letter of credit, guarantee, claims, security
interest, supporting obligation or other security for the payment by an Account
Debtor of any of the Accounts (the foregoing, collectively, "General
Intangibles"),
(e) any demand, time, savings, passbook, money market or like
depository account, and all certificates of deposit, maintained with a bank,
savings and loan association, credit union or like organization, other than an
account evidenced by a certificate of deposit that is an instrument under the
UCC (the foregoing, collectively, "Deposit Accounts"),
(f) all certificated and uncertificated securities, all security
entitlements, all securities accounts, all commodity contracts, all commodity
accounts and all other investment property (the foregoing, collectively,
"Investment Property"),
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(g) (i) any investment account maintained by or on behalf of the
Grantor with the Administrative Agent or any Lender or any Affiliate of the
Administrative Agent or any Lender, (ii) any agreement governing such account,
(iii) all cash, money, notes, securities, instruments, goods, accounts,
documents, chattel paper, general intangibles and other property now or
hereafter held by the Administrative Agent or any Lender or any Affiliate of
the Administrative Agent or any Lender on behalf of the Grantor in connection
with such investment account or deposited by the Grantor or on the Grantor's
behalf to such investment account or otherwise credited thereto for the
Grantor's benefit, or distributable to the Grantor from such investment
account, together with all contracts for the sale or purchase of the foregoing,
(iv) all of the Grantor's right, title and interest with respect to the
deposit, investment, allocation, disposition, distribution or withdrawal of the
foregoing, (v) all of the Grantor's right, title and interest with respect to
the making of amendments, modifications or additions of or to the terms and
conditions under which the investment account or investments maintained therein
is to be maintained by the Grantor, the Administrative Agent, any Lender or any
Affiliate of the Administrative Agent or any Lender on the Grantor's behalf,
and (vi) all of the Grantor's books, records and receipts pertaining to or
confirming any of the foregoing (the foregoing, collectively, "Investment
Accounts"),
(h) all cash or other property deposited with the Administrative
Agent or any Lender or any Affiliate of the Administrative Agent or any Lender
or which the Administrative Agent, for its benefit and for the benefit of the
Lenders, or any Lender or such Affiliate is entitled to retain or otherwise
possess as collateral pursuant to the provisions of this Agreement or any of
the Loan Documents or any agreement relating to any Letter of Credit,
including, without limitation, amounts on deposit in the Cash Collateral
Account,
(i) all goods and other property, whether or not delivered, (i)
the sale or lease of which gives or purports to give rise to any Account,
including, but not limited to, all merchandise returned or rejected by or
repossessed from customers, or (ii) securing any Account, including, without
limitation, all rights as an unpaid vendor or lienor (including, without
limitation, stoppage in transit, replevin and reclamation) with respect to such
goods and other properties,
(j) all mortgages, deeds to secure debt and deeds of trust on
real or personal property, guaranties, leases, security agreements, supporting
obligations and other agreements and property which secure or relate to any
Account or other Collateral or are acquired for the purpose of securing and
enforcing any item thereof,
(k) all documents of title, including bills of lading and
warehouse receipts, policies and certificates of insurance, securities, chattel
paper and other documents and instruments,
(l) all files, correspondence, computer programs, tapes, disks
and related data processing software which contain information identifying or
pertaining to any of the Collateral or any Account Debtor or showing the
amounts thereof or payments thereon or otherwise necessary or helpful in the
realization thereon or the collection thereof, and
I-3
(m) any and all products and cash and non-cash proceeds of the
foregoing (including, but not limited to, any claims to any items referred to
in this definition and any claims against third parties for loss of, damage to
or destruction of any or all of the Collateral or for proceeds payable under or
unearned premiums with respect to policies of insurance) in whatever form,
including, but not limited to, cash, negotiable instruments and other
instruments for the payment of money, chattel paper, security agreements and
other documents.
Notwithstanding anything herein to the contrary, except as specified in the
Loan Agreement, the Collateral shall not include (i) any agreement with a third
party existing on the date hereof that prohibits the grant of a Lien (as
defined in the Loan Agreement) on (but not merely the assignment of or of any
interest in) such agreement or any Grantor's rights thereunder without the
consent of such third party or under which a consent to such grant is otherwise
required, which consent has not been obtained, except to the extent provided by
Sections 9-406 through 9-409 of the Uniform Commercial Code, or (ii) any
license, permit or other Governmental Approval that, under the terms and
conditions of such Governmental Approval or under Applicable Law, cannot be
subjected to a Lien in favor of the Administrative Agent without consent which
consent has not been obtained; PROVIDED, HOWEVER, that the Collateral shall
include all items excluded pursuant to CLAUSE (i) OR (ii) from and after the
date on which the requisite consent is obtained; and, PROVIDED FURTHER, that
the Grantor and the other Loan Parties may, after the Effective Date, enter
into agreements containing the prohibition described in CLAUSE (i) if the value
of the property subject thereto and which would otherwise constitute
Collateral, when added to the value of all other property subject to agreements
entered into after the Effective Date and including such prohibition, would not
exceed $10,000,000.
SECTION 2. Grantor Remains Liable. Anything contained herein
to the contrary notwithstanding, (a) the Grantor shall remain liable under the
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Secured Party of any of the rights hereunder shall not release the Grantor from
any of its duties or obligations under the contracts and agreements included in
the Collateral, and (c) the Secured Party shall not have any obligation or
liability under the contracts and agreements included in the Collateral by
reason of this Agreement, nor shall the Secured Party be obligated to perform
any of the obligations or duties of the Grantor thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder.
SECTION 3. Representations and Warranties. The Grantor
represents and warrants as follows:
(a) The Grantor is a corporation or a limited liability company,
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, has the power and authority to own
its properties and to carry on its business as now being and as hereafter
proposed to be conducted and is duly qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, except to the extent its
failure to be so qualified or authorized could not reasonably be expected to
have a Materially Adverse Effect.
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(b) The Grantor has the right and power, and has taken all
necessary action to authorize it, to execute, deliver and perform this
Agreement in accordance with its terms. This Agreement has been duly executed
and delivered by the duly authorized officers of the Grantor and is a legal,
valid and binding obligation of the Grantor, enforceable in accordance with its
terms.
(c) The execution, delivery and performance of this Agreement in
accordance with its terms does not and will not, by the passage of time, the
giving of notice or otherwise,
(i) require any Governmental Approval or
violate any Applicable Law relating to the Grantor,
(ii) conflict with, result in a breach of or
constitute a default under the articles of incorporation or bylaws or
any other constituent document of the Grantor, any material provisions
of any indenture, agreement or other instrument to which the Grantor
is a party or by which it or any of its property may be bound or any
Governmental Approval relating to the Grantor or
(iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned
or hereafter acquired by the Grantor other than the security interest
contemplated by this Agreement.
(d) Except as set forth on Schedule 7.1(k) to the Loan Agreement,
there are no actions, suits or proceedings pending (nor, to the knowledge of
the Grantor, are there any actions, suits or proceedings threatened, or a
reasonable basis therefor) against or in any way relating to or affecting the
Grantor before any court, governmental agency or arbitrator, which may
materially adversely affect the financial condition or operations of the
Grantor, except actions, suits or proceedings of the character normally
incident to the kind of business conducted by the Grantor which, if adversely
determined, would not singly or in the aggregate have a Materially Adverse
Effect.
(e) All of the Equipment and Inventory is located at (or, in the
case of Inventory, is in transit to) one the locations set forth in PART I of
EXHIBIT A hereto except with respect to Inventory, as otherwise disclosed to
Administrative Agent in writing.
(f) The address of the chief executive office of the Grantor is
set forth in PART II of EXHIBIT A hereto. The address(es) of such chief
executive office has not been changed during the year preceding the date
hereof.
(g) The office(s) where the Grantor keeps its records concerning
the Accounts and originals of chattel paper, if any, which evidences Accounts
is located at the address set forth in PART III of EXHIBIT A hereto and except
as otherwise indicated in said PART III of EXHIBIT A, such office(s) has (have)
been located at such address(es) continuously for the past year. None of the
Accounts is evidenced by a promissory note or other instrument which has not
been delivered to the Secured Party at its request.
(h) If the business of the Grantor has been conducted under a
different name or names during the last five years, such name(s) is (are) set
forth in PART IV of EXHIBIT A
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hereto. Also set forth in PART IV of EXHIBIT A hereto is the exact legal name
of the Grantor, its jurisdiction of incorporation or formation and the
organizational number issued thereby, if any.
(i) The Grantor owns the Collateral free and clear of any lien,
security interest, charge or encumbrance except for the security interest
created by this Agreement, Permitted Liens, and except as may be set forth in
EXHIBIT B attached hereto and made a part hereof. Except as may be set forth on
EXHIBIT B, to the knowledge of the Grantor, no effective financing statement or
other instrument similar in effect covering all or any part of the Collateral
is on file in any recording office, except such as may have been filed in favor
of the Secured Party relating to this Agreement.
(j) This Agreement creates a valid security interest in the
Collateral, securing the payment of the Secured Obligations.
(k) Except for the filing of UCC financing statements in the
appropriate jurisdictions, no authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the grant by the Grantor of the security interest granted hereby
or for the execution, delivery or performance of this Agreement by the Grantor.
SECTION 4. Further Assurances. (a) The Grantor agrees that
from time to time, at the expense of the Grantor, the Grantor shall promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Secured Party may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Secured Party to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the foregoing, the Grantor shall
take all actions contemplated by SECTION 8.2(b) of the Loan Agreement.
(b) The Grantor hereby authorizes the Secured Party to file one
or more financing or continuation statements, and amendments thereto, relative
to all or any part of the Collateral without the signature of the Grantor where
permitted by law. The Administrative Agent will endeavor to give the Grantor
notice of the filing of any such statements or amendments, which may be given
by delivery of a copy of such filing, but shall not be liable for its failure
to deliver any such notice or copy.
(c) The Grantor shall furnish to the Secured Party from time to
time statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Secured Party
may reasonably request, all in reasonable detail.
(d) The Grantor shall deliver to the Secured Party, for the
benefit of the Lenders, a description of the facts forming the basis for any
commercial tort claim of the Grantor, promptly upon the occurrence thereof,
together with such confirmation of the security interest of the Secured Party
therein as the Secured Party may reasonably request.
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SECTION 5. As to Equipment and Inventory. The Grantor shall:
(a) Keep the Equipment and Inventory (other than Inventory in
transit to such location, sold in the ordinary course of business or held by
third party processors or other contractors in accordance with the terms of the
Loan Agreement) at the places therefor specified in Section 3(e) or, with the
prior consent of the Secured Party, at such other places in jurisdictions where
all action required by Section 4 shall have been taken with respect to the
Equipment and Inventory.
(b) Cause the Equipment to be maintained in good repair, working
order and condition in all material respects, with reasonable allowance for
wear and tear, and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to the Equipment
necessary for the conduct of its business, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
Grantor shall give prompt notice to the Administrative Agent of any matter or
event which has resulted in, or may result in, the diminution of Collateral in
accordance with and subject to the provisions of Section 9.12(d) of the Loan
Agreement.
(c) Pay promptly when due all property and other taxes,
assessments and governmental charges or levies imposed upon, and all claims
(including claims for labor, materials and supplies) against, the Equipment and
Inventory, except to the extent the validity thereof is being contested in good
faith by appropriate proceedings.
SECTION 6. Insurance. The Grantor shall take all actions
contemplated by SECTION 9.8 of the Loan Agreement.
SECTION 7. As to Accounts. (a) The Grantor will not change
the location of its chief executive office or the place where it keeps its
books and records relating to the Collateral from the address set forth for it
on EXHIBIT A or change its name, its identity or corporate structure from that
in effect on the date hereof, complete any transaction that results in a change
of such Borrower's jurisdiction of organization or use any trade name not
listed on EXHIBIT A without giving the Administrative Agent 30 days' prior
written notice thereof accompanied by such evidence as the Administrative Agent
may reasonably require that all actions required to be taken pursuant to
ARTICLE 8 of the Loan Agreement have been taken, provided, that each of ▇▇▇▇▇▇▇
Athletic, Inc. and ▇▇▇▇▇▇▇ Athletic West, Inc. may be dissolved, liquidated,
wound up or merged into ▇▇▇▇▇▇▇ or another Loan Party pursuant to the
applicable provisions of the laws of such Loan Party's state of incorporation.
At the time of such dissolution, liquidation, winding up or merger, all of the
assets of such Loan Party will be distributed to ▇▇▇▇▇▇▇ or another Loan Party.
The Grantor hereby expressly agrees to be bound by SECTION 9.1 of the Loan
Agreement.
(b) Except as otherwise provided in this SUBSECTION (b) or
SECTION 9.1 of the Loan Agreement, the Grantor shall continue to collect, at
its own expense, all amounts due or to become due the Grantor under the
Accounts. In connection with such collections, the Grantor may take (and,
during the continuation of an Event of Default, at the Secured Party's
direction, shall take) such action as the Grantor or the Secured Party may deem
necessary or advisable to enforce collection of the Accounts; PROVIDED,
HOWEVER, that the Secured Party shall have the right at any time, upon the
occurrence and during the continuation of an Event of Default, to
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notify the Account Debtors or obligors under any Accounts of the assignment of
such Accounts to the Secured Party and to direct such Account Debtors or
obligors to make payment of all amounts due or to become due to the Grantor
thereunder directly to the Secured Party and, upon such notification and at the
expense of the Grantor, to enforce collection of any such Accounts, and to
adjust, settle or compromise the amount or payment thereof, in the same manner
and to the same extent as the Grantor might have done. After receipt by the
Grantor of the notice from the Secured Party referred to in the PROVISO to the
preceding sentence and during the continuation of an Event of Default, (i) all
amounts and proceeds (including instruments) received by the Grantor in respect
of the Accounts shall be received in trust for the benefit of the Secured Party
hereunder, shall be segregated from other funds of the Grantor and shall be
forthwith paid over to the Secured Party in the same form as so received (with
any necessary endorsement) to be held as cash collateral and either (A)
released to the Grantor so long as no Event of Default shall have occurred and
be continuing or (B) if any Event of Default shall have occurred and be
continuing, applied as provided by SECTION 13(b), and (ii) the Grantor shall
not adjust, settle or compromise the amount or payment of any Account, or
release wholly or partly any account debtor or obligor thereof, or allow any
credit or discount thereon.
SECTION 8. Transfers and Other Liens. The Grantor shall not
without the prior written consent of the Secured Party:
(a) Sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral except as expressly permitted by and subject
to the terms of the Loan Agreement.
(b) Create or suffer to exist any Lien upon or with respect to
any of the Collateral to secure Indebtedness of any person or entity, except
for the security interest created by this Agreement and Permitted Liens.
SECTION 9. Secured Party Appointed Attorney-in-Fact. The
Grantor hereby irrevocably appoints the Secured Party the Grantor's
attorney-in-fact, with full authority in the place and stead of the Grantor and
in the name of the Grantor, the Secured Party or otherwise, during the
continuation of an Event of Default, to take any action and to execute any
instrument which the Secured Party may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of the Grantor
under SECTION 7), including, without limitation:
(i) to obtain and adjust insurance required to be paid
to the Secured Party pursuant to SECTION 6,
(ii) to ask demand, collect, ▇▇▇ for, recover, compound,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral,
(iii) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with CLAUSE
(i) or (ii) above, and
(iv) to file any claims or take any action or institute
any proceedings which the Secured Party may deem necessary or
desirable for the collection of any of the
I-8
Collateral or otherwise to enforce the rights of the Secured Party
with respect to any of the Collateral.
SECTION 10. Secured Party May Perform. If the Grantor fails
to perform any agreement contained herein, the Secured Party may itself
perform, or cause performance of, such agreement, and the expenses of the
Secured Party incurred in connection therewith shall be payable by the Grantor
under SECTION 16.13 of the Loan Agreement.
SECTION 11. The Secured Party's Duties. The powers conferred
on the Secured Party hereunder are solely to protect its interest (for the
benefit of the Lenders), in the Collateral and shall not impose any duty upon
it to exercise any such powers. Except for the safe custody of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Secured Party shall have no duty as to any Collateral or as to
the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral.
SECTION 12. Events of Default. The occurrence of any "Event of
Default" as defined in the Loan Agreement shall constitute an Event of Default
hereunder.
SECTION 13. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Secured Party may exercise in respect of the Collateral,
in addition to other rights and remedies provided for herein or otherwise
available to it under Applicable Law or in equity or otherwise, all the rights
and remedies of a secured party on default under the applicable Uniform
Commercial Code (the "Code") (whether or not the Code applies to the affected
Collateral) and also may do any or all of the following:
(i) Declare any or all of the Secured Obligations then
existing to be immediately due and payable and they shall thereupon
become forthwith due and payable, without notice of any kind to the
Grantor and without any other presentment, demand, protest, or notice
of any kind, all of which are hereby expressly waived;
(ii) Terminate the Lenders' obligations, if any, to make
or to permit the Borrowers to make further Loans or extensions of
credit or other financial accommodations to the Grantor;
(iii) In the name of the Secured Party or in the name of
the Grantor or otherwise, demand, ▇▇▇ for, collect or receive any
money or property at any time payable or receivable on account of or
in exchange for, or make any compromise or settlement deemed desirable
with respect to, any of the Collateral, but the Secured Party shall be
under no obligation so to do, and the Secured Party may extend the
time of payment, arrange for payment installments, or otherwise modify
the terms of, or release, any of the Collateral without thereby
incurring responsibility to, or discharging or otherwise affecting any
liability of, the Grantor;
I-9
(iv) Enter upon the premises, or wherever the Collateral
may be, and take possession thereof, and demand and receive such
possession from any Person who has possession thereof;
(v) Require the Grantor to, and the Grantor hereby
agrees that it will at its expense and upon request of the Secured
Party forthwith, assemble all or part of the Collateral as directed by
the Secured Party and make it available to the Secured Party at a
place to be designated by the Secured Party which is reasonably
convenient to both parties;
(vi) Without notice except as specified below and with or
without taking the possession thereof, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any
location chosen by the Secured Party, for cash, on credit or for
future delivery, and at such price or prices and upon such other terms
as the Secured Party may deem commercially reasonable. The Grantor
agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to the Grantor of the time and place of any
public sale or the time after which any private sale is to be made
shall constitute reasonable notification, but notice given in any
other reasonable manner or at any other reasonable time shall
constitute reasonable notification. The Secured Party shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. The Secured Party may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned;
(vii) In any action hereunder, the Secured Party shall be
entitled to the appointment of a receiver, without notice, to take
possession of all or any portion of the Collateral and to exercise
such power as the court shall confer upon the receiver; and
(viii) Apply, without notice, any cash or cash items
constituting Collateral in the Secured Party's possession to payment
of any of the Secured Obligations.
The undersigned waives, to the extent permitted by Applicable Law, all
rights it has to prior notice (except as set forth in SECTION 16) and hearing
under the Constitution of the United States and the Uniform Commercial Codes
and constitution of the State of Georgia and under any other applicable statute
or constitution.
(b) All cash proceeds received by the Secured Party in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Secured Party, be held by the Secured
Party as collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Secured Party pursuant to SECTION 14) in
whole or in part by the Secured Party against, all or any part of the Secured
Obligations in accordance with the provisions of SECTION 13.3 of the Loan
Agreement. Any surplus of such cash or cash proceeds held by the Secured Party
and remaining after payment in full of all the Secured Obligations shall be
paid over to the Grantor or to whomsoever may be lawfully entitled to receive
such surplus. The Grantor shall remain liable for any deficiency.
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SECTION 14. Indemnity and Expenses. (a) The Grantor agrees to
indemnify the Secured Party from and against any and all claims, losses and
liabilities growing out of or resulting from this Agreement (including, without
limitation, enforcement of this Agreement), except claims, losses or
liabilities resulting from the Secured Party's gross negligence or willful
misconduct.
(b) The Grantor will upon demand pay to the Secured Party the
amount of any and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the Secured
Party may incur in connection with (i) the perfection of any security interest
granted hereunder, (ii) the administration of this Agreement, (iii) the
custody, preservation, use or operation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (iv) the exercise or enforcement
of any of the rights of the Secured Party hereunder, or (v) the failure by the
Grantor to perform or observe any of the provisions hereof.
SECTION 15. Amendments; Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Grantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Secured Party, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 16. Notices. All notices and other communications
hereunder shall be given in accordance with the provisions of SECTION 16.1 of
the Loan Agreement, to the Grantor at its address set forth on the signature
pages hereof (with a copy to the Borrowers), to the Secured Party at its
address set forth on the signature pages hereof, or as to either party at such
other address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section.
SECTION 17. Continuing Security Interest; Transfer of
Obligations. This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until payment in full
of the Secured Obligations, (ii) be binding upon the Grantor, its successors
and assigns, and (iii) inure to the benefit of the Secured Party and its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), any Lender may assign or otherwise transfer the Secured
Obligations to another Person in accordance with the provisions of the Loan
Agreement and such Person shall thereupon become vested with all the benefits
in respect thereof granted to the Secured Party herein or otherwise. Upon the
payment in full of the Secured Obligations, the security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
Grantor. Upon any such termination, the Secured Party will, at the Grantor's
expense, execute and deliver to the Grantor such documents as the Grantor shall
reasonably request to evidence such termination.
SECTION 18. Governing Law; Terms. (a) This Agreement shall be
governed by and construed in accordance with the laws of the State of Georgia,
except as required by mandatory provisions of law and except to the extent that
the validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Collateral are governed by the laws of
a jurisdiction other than the State of Georgia. Unless otherwise defined
herein, terms used in Article 9 of the Uniform Commercial Code of the State of
Georgia are used herein as therein defined.
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(b) The Grantor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Superior
Court of the State of Georgia sitting in ▇▇▇▇▇▇ County and of the United States
District Court for the Northern District of Georgia, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment and both
parties hereto hereby irrevocably and unconditionally agree that all claims in
respect of any such action or proceeding may be heard and determined in such
Georgia State court or, to the extent permitted by law, in such federal court.
Both parties hereto agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Grantor or its properties in the courts of any jurisdiction.
SECTION 19. Conflict with Loan Agreement. To the extent any
provision hereof shall be in conflict with or inconsistent with any provision
of the Loan Agreement, the provision of the Loan Agreement shall control.
SECTION 20. Grantor's Representative. ▇▇▇▇▇▇▇ shall act under
this Agreement as the representative of the Grantor, and the Grantor hereby
appoints ▇▇▇▇▇▇▇ as its representative hereunder for all purposes, including
receiving notices and communications to the Grantor from the Administrative
Agent or any Lender. The Administrative Agent and the Lenders may rely, and
shall be fully protected in relying, on any report, information or any other
notice or communication made or given by ▇▇▇▇▇▇▇, whether in its own name or on
behalf of the Grantor and neither the Administrative Agent nor any Lender shall
have any obligation to make any inquiry or request any confirmation from or on
behalf of the Grantor as to the binding effect on it of any such report,
information, notice or communication.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective duly authorized officer(s)
as of the date first above written.
GRANTOR:
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address:
--------------------------------------
--------------------------------------
--------------------------------------
SECURED PARTY:
FLEET CAPITAL CORPORATION, as
Administrative Agent
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration
Manager
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EXHIBIT A
To Guarantor Security Agreement
_____________________- Grantor
Fleet Capital Corporation - Secured Party
Part I - Present Location of Equipment and Inventory
Part II - Chief Executive Office of Grantor
Part III - Location of Accounts Records
Part IV - Names Used During Last Five Years, Jurisdiction of Organization,
Organizational Number
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EXHIBIT B
To Guarantor Security Agreement
_____________________- Grantor
Fleet Capital Corporation - Secured Party
Prior Liens
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SCHEDULES TO LOAN AND SECURITY AGREEMENT
INFORMATION DISCLOSED IN ONE SCHEDULE SHALL BE DEEMED DISCLOSED IN ALL
OTHER APPLICABLE SCHEDULES.
SCHEDULE 1.1A
ASSETS HELD FOR SALE
APPROXIMATE
LOCATION/DESCRIPTION ACREAGE/SQ. FOOTAGE
--------------------------------------------------------------------------------
MARIANNA DISTRIBUTION CENTER 259,271 sq. ft./21.5 Acres
MARIANNA, FL
FLOYD, VA FACILITY 50,904 sq. ft./11.51 Acres
ASHLAND, AL FACILITY 29,000 sq. ft./4.5 Acres
LAFAYETTE, AL FACILITY 81,750 sq. ft./9.9 Acres
SYLACAUGA, AL FACILITY 137,485 sq. ft./12.5 Acres
PERSONNEL BUILDING 21,930 sq. ft./5 Acres
ALEXANDER CITY, AL
R&D BUILDING 42,464 sq. ft./5 Acres
ALEXANDER CITY, AL
SURPLUS LAND ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
▇▇. ▇▇▇▇, ▇▇ 74,748 sq ft
FRANKLIN STREET
FT ▇▇▇▇▇▇ MALL 151,690 sq ft
FT. ▇▇▇▇▇▇, FL
FT ▇▇▇▇▇▇ MALL 44,125 sq ft
FT. ▇▇▇▇▇▇, FL
ALEXANDER CITY, AL 14,060 sq ft
DOWNTOWN OFFICES
COMMANDER HOUSE
ALEXANDER CITY, AL
5 ACRE TRACT - ACROSS FROM RETAIL STORE
ALEXANDER CITY, AL
5.8 ACRE ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
1
10 ACRE ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. & ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
20 ACRE ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
COMMUNITY COLLEGE
ALEXANDER CITY, AL
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ & AL63
ALEXANDER CITY, AL
1.55 ACRE ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
17.5 ACRE TRACT BETWEEN ▇▇▇▇▇▇ SCHOOL & SPORTSPLEX
ALEXANDER CITY, AL
1,700 ACRE ▇▇▇▇▇▇▇ POND TRACT
ALEXANDER CITY, AL
2
SCHEDULE 1.1B
PERMITTED INVESTMENTS
1. Investments as of the Effective Date in American Sportswear S.A.
(Brazil) pursuant to the Shareholders' Agreement dated September 30,
1999 between ▇▇▇▇▇▇▇ do Brasil Ltda. and Companhia de Tecidos Norte de
Minas - Coteminas in an amount of less than $2,000,000
2. Investments as of the Effective Date pursuant to Marmot Mountain Ltd.
Second Amended and Restated Stockholder Agreement dated August 28,
2001 in the approximate amount of $4,200,000
3. Investments as of the Effective Date in Frontier Yarns, LLC in the
approximate amount of $9,500,000
4. Intercompany Debt owing by RUServicios, Sociedad Anonima to ▇▇▇▇▇▇▇,
as evidenced by a promissory note in the principal amount of
US$5,000,000
3
SCHEDULE 1.1C
PERMITTED LIENS
1. UCC Financing Statements and Tax Liens
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Pitney ▇▇▇▇▇ North Carolina 001490763 8/11/97 Specified Equipment
Apparel, Inc. Credit Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Associates North Carolina 19980038254 6/23/98 Specified Equipment
Apparel, Inc. Leasing, Inc. Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Telimagine, Inc. North Carolina 20000008199 1/24/00 Specified Equipment
Apparel, Inc. Secretary of
Assignee: Conseco State
Finance Vendor
Services
Corporation
Assigned to ▇▇▇▇▇
Fargo Financial
Leasing, Inc.
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Pitney ▇▇▇▇▇ North Carolina 20000035920 4/7/00 Specified Equipment
Apparel, Inc. Credit Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Western Carolina North Carolina 20000123088 12/20/00 Specified equipment and
Apparel, Inc. Forklift, Inc. Secretary of all attachments and parts
Assignee: State
The CIT
Group/Equipment
Financing, Inc.
--------------------------------------------------------------------------------------------------------------------------
Cross Creek ▇▇▇▇▇▇▇ Financial North Carolina 20010508519L 8/7/01 Receivables, customer
Apparel, LLC Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Associates Surry County, 98-001171 6/24/98 Specified Equipment
Apparel, Inc. Leasing, Inc. North Carolina
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Vanguard Supreme Surry County, 00-000893 4/12/00 Specified Equipment
Apparel, Inc. North Carolina
--------------------------------------------------------------------------------------------------------------------------
4
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
Cross Creek Western Carolina Surry County, 00-002495 12/20/00 Specified
Apparel, Inc. Forklift, Inc. North Carolina Equipment
Assignee: The
CIT Group /
Equipment
Financing, Inc.
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ 8/6/01 Receivables, customer
Apparel, LLC Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
--------------------------------------------------------------------------------------------------------------------------
Cross Creek ▇▇▇▇▇▇▇ Financial ▇▇▇▇ County, 033200109712 8/6/01 Receivables, customer
Apparel, LLC Services, Inc. Georgia agreements, goods,
security for receivables,
books and records, and
proceeds
--------------------------------------------------------------------------------------------------------------------------
DeSoto ▇▇▇▇▇, Inc. ▇▇▇▇▇▇▇ Financial Alabama B2001-30930FS 8/6/01 Receivables, customer
Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
--------------------------------------------------------------------------------------------------------------------------
DeSoto ▇▇▇▇▇, Inc. ▇▇▇▇▇▇▇ Financial ▇▇▇▇ County, 033200109713 8/6/01 Receivables, customer
Services, Inc. Georgia agreements, goods,
security for receivables,
books and records, and
proceeds
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Tractor Mississippi 01450813 7/17/00 Specified Equipment
Corporation - Co., Inc. Secretary of
Jerzees Mossy Oak State
Apparel Co.
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing Mississippi 01473623 10/23/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Tractor Mississippi, 00-775 7/5/00 Specified Equipment
Corporation - Co., Inc. Clay County
Jerzees Mossy Oak
Apparel Co.
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing Mississippi, 00-1289 10/23/00 Leased Equipment
Corporation Corporation Clay County
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corp. Pitney ▇▇▇▇▇ Alabama B96-37418FS 9/9/96 Leased Equipment
Credit Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
5
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Tractor Alabama B96-47316FS 11/12/96 Specified Equipment
Corporation - DC Co., Inc. Secretary of
Mont. State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Tractor Alabama B96-50308FS 12/2/96 Specified Equipment
Corporation - DC Co., Inc. Secretary of
Mont. State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ SunTrust Bank, Alabama B97-24882FS 6/11/97 Fixtures and Equipment
Corporation and Atlanta Secretary of relating to industrial
Industrial State revenue bond
Development Board
of the City of
Ashland, Alabama
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Caterpillar Alabama B99-09151FS 3/3/99 Leased Equipment
Corporation Financial Secretary of
Services State
Corporation
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ First Alabama Alabama B99-12512FS 3/23/99 Fixtures, Rights and
Corporation Bank (now Regions Secretary of Revenues relating to bond
Bank) State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Caterpillar Alabama B1999-25870FS 6/17/99 Leased Equipment
Corporation Financial Secretary of
Services State
Corporation
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B1999-32512FS 8/4/99 Specified Equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B1999-32513FS 8/4/99 Specified Equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Alabama B1999-41255FS 10/4/99 Specified Equipment
Corporation Assignee: MLC Secretary of
Group, Inc. State
Assigned to
Wachovia Leasing
Corporation
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ IBM Credit Alabama B2000-00677FS 1/5/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
6
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing Alabama B2000-03091FS 1/20/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Schlafhorst Inc. Alabama B2000-09605FS 3/7/00 Specified Equipment
Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Alabama B2000-09862FS 3/8/00 Leased Equipment
Corporation Credit Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ IBM Credit Alabama B2000-13880FS 4/6/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Computer Sales Alabama B2000-14937FS 4/13/00 Leased Equipment
Corporation International, Secretary of
Inc. State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Computer Sales Alabama B2000-18412FS 5/8/00 Leased Equipment
Corporation International, Secretary of
Inc. State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Computer Sales Alabama B2000-26726FS 6/30/00 Leased Equipment
Corporation International, Secretary of
Inc. State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Computer Sales Alabama B2000-28545FS 7/17/00 Leased Equipment
Corporation International, Secretary of
Inc. State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B2000-33671FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B2000-33672FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B2000-33673FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B2000-33674FS 8/21/00 Specified Equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing Alabama B2000-41151FS 10/17/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
7
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing Alabama B2000-41152FS 10/17/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing Alabama B2000-46919FS 12/4/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing Alabama B2000-46921FS 12/4/00 Leased Equipment
Corporation Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Capital Alabama B2001-05109FS 2/6/01 Leased Equipment
Corporation Leasing - Secretary of
Technology Finance State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Capital Alabama B2001-05212FS 2/7/01 Leased Equipment
Corporation Leasing - Secretary of
Technology Finance State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Capital Alabama B2001-09815FS 3/13/01 Leased Equipment
Corporation Leasing Secretary of
Technology Finance State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B2001-29176FS 7/26/01 Specified Equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corp. Caterpillar Alabama B2001-29433FS 7/27/01 Specified Equipment
Financial Secretary of
Services State
Corporation
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financial Alabama B2001-30932FS 8/06/01 Receivables, customer
Corporation Services, Inc. Secretary of agreements, goods,
State security for receivables,
books and records, and
proceeds
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Business Credit Florida 970000055629 3/10/97 Specified Equipment
Corporation Leasing Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Copy Products Co. Florida 980000248264 11/6/98 Specified Equipment
Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
8
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ SunTrust Bank, Judge of 175760 4/30/97 Real property,
Corporation and Atlanta Probate, improvements, fixtures,
The Industrial Houston County, equipment and leasehold
Development Board Alabama
of the Town of
Columbia, Alabama
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Regions Bank as Judge of 328642 6/9/98 Buildings and
Corporation Trustee, formerly Probate, (continuation of (original improvements to leased
First Alabama Bank Montgomery original file filed 1/31/89, realty, fixtures, rights
County, Alabama number 294349) amendment under Lease Agreement,
filed 4/24/92, Project Revenues
first
continuation
filed 9/7/93
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Judge of 65873 7/26/01 Specified Equipment
Corporation LLC Probate, Pike
County, Alabama
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Capital ▇▇▇▇▇▇ County, 0602001002971 2/13/01 Specified Equipment
Corporation Leasing Georgia
Technology Finance
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Capital ▇▇▇▇▇▇ County, 0602001002972 2/13/01 Specified Equipment
Corporation Leasing Georgia
Technology Finance
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Capital ▇▇▇▇▇▇ County, 0602001002973 2/13/01 Specified Equipment
Corporation Leasing Georgia
Technology Finance
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing ▇▇▇▇▇▇ County, 0602000005134 3/20/00 Specified Equipment
Corporation Corporation Georgia
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing ▇▇▇▇▇▇ County, 0602000005074 3/20/00 Specified Equipment
Corporation Corporation Georgia
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing ▇▇▇▇▇▇ County, 0602000001044 1/14/00 Specified Equipment
Corporation Corporation Georgia
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Leasing ▇▇▇▇▇▇ County, 0601999020368 10/20/99 Specified Equipment
Corporation Corporation Georgia
--------------------------------------------------------------------------------------------------------------------------
9
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Crown Credit Muscogee 10695004422 10/19/95 Specified Equipment
Corporation Company County, Georgia
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Crown Credit Muscogee 10695004423 10/19/95 Specified Equipment
Corporation Company County, Georgia
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corp. Caterpillar ▇▇▇▇▇▇ County, ▇▇▇-▇▇▇▇-▇▇▇▇▇▇ 7/27/01 Leased Equipment
Financial Georgia
Services
Corporation
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financial ▇▇▇▇ County, 033200109714 8/6/01 Receivables, customer
Corporation Services, Inc. Georgia agreements, goods,
security for receivables,
books and records, and
proceeds
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Development Muscogee ▇▇▇-▇▇-▇▇▇▇▇▇ 12/22/95 Documents, Goods,
Corporation Authority of County, Georgia Fixtures, Minerals,
Columbus, Georgia Proceeds
(Assignee: Continued on 12/15/00
Synovus Trust with continuation
Company) #▇▇▇-▇▇-▇▇▇▇▇▇
--------------------------------------------------------------------------------------------------------------------------
The ▇▇▇▇▇▇▇ First American Tennessee 961549999 11/27/96 Specified Equipment
Corporation National Bank Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ First American Tennessee 982009178 1/29/98 Specified Equipment
Corporation d/b/a National Bank Secretary of
▇▇▇▇▇▇ ▇▇▇▇▇ State
Printing Co.
--------------------------------------------------------------------------------------------------------------------------
The ▇▇▇▇▇▇▇ Imation Financing Tennessee 972064841 8/19/97 Leased Equipment
Corporation Services Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Capital Kansas 4572020 3/28/01 Leased Equipment
Corporation Leasing Secretary of
Technology Finance State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Aliant Bank Alabama B 02-000005519 FS 01/07/02 Leased Equipment
Corporation Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
10
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Business Alabama B ▇▇-▇▇▇▇▇▇▇ FS 03/04/02 Specified Equipment
Corporation Credit, LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇ Capital Alabama B 02 0104327 FS 02/26/02 Leased Equipment
Corporation Corporation and Secretary of
Eplus Group, Inc. State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Citicorp Del Alabama B ▇▇-▇▇▇▇▇▇▇ FS 1/24/02 Specified equipment
Corporation Lease Inc. Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Computer Sales Alabama 2000-18412 FS 5/08/00 Leased equipment
Corporation International Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇ FS 6/28/00 Specific equipment plus
Corporation/Jerzees Co., Inc. Secretary of proceeds
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Alabama B 2001-36969 FS 9/24/01 Specified equipment
Corporation LLC Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Caterpillar Alabama B 2001-46249 FS 12/05/01 Leased equipment
Corporation Financial Secretary of
Services State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Caterpillar Alabama B 02-016240 FS 3/21/02 Leased equipment
Corporation Financial Services Secretary of
State
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Talledega 173298 7/27/01 Specified equipment
Corporation LLC County, AL
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Talledega 173300 7/27/01 Specified equipment
Corporation LLC County, AL
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Talledega 173299 7/27/01 Specified equipment
Corporation LLC County, AL
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Tallapoosa 11754 7/26/00 Specified equipment
Corporation LLC County, AL
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Tallapoosa 11755 7/26/00 Specified equipment
Corporation LLC County, AL
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Tallapoosa 11756 7/26/00 Specified equipment
Corporation LLC County, Al
--------------------------------------------------------------------------------------------------------------------------
11
--------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Tubular Textile Tallapoosa 11757 7/26/00 Specified equipment
Corporation LLC County, Al
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Fleet Business ▇▇▇▇▇▇ County, 60023177 3/07/02 Specified equipment
Corporation Credit, LLC GA
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ State of New York New York 9/26/01 NY City Tax Warrant
Corporation County, NY
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ State of New York New York 11/20/01 NY City Tax Warrant
Corporation County, NY
--------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 123086 Illegible Specific equipment
Apparel, Inc. Group/Equip. Secretary of
Financing, Inc. State
--------------------------------------------------------------------------------------------------------------------------
Cross Creek ▇▇▇▇▇ Fargo North Carolina 2000 008199 5/24/00 Leased equipment
Apparel, Inc. Financial Secretary of
Leasing, Inc. State
--------------------------------------------------------------------------------------------------------------------------
2. Liens created in favor of Wachovia Bank, N.A., as
Collateral Agent, pursuant to the Guarantee and Collateral Agreement dated
as of December 14, 2001 among ▇▇▇▇▇▇▇ Corporation, certain of its Subsidiaries
and Wachovia Bank, N.A., as Collateral Agent, and the mortgages executed in
connection therewith (which Liens will be released in accordance with
subsection (i) of the definition of "Permitted Liens").
3. Liens created in favor of the Agent, for the benefit of
itself and for the Lenders, pursuant to this Agreement, and the Mortgages,
Pledge Agreements, Trademark Agreement, Patent Agreement, Guarantor Security
Agreement, Aircraft Chattel Mortgages and other Security Documents executed in
connection herewith.
12
SCHEDULE 1.1D
DESIGNATED ACCOUNT DEBTORS
Insolvent Account Debtors (clause (i) of the definition "Eligible Account"):
K-Mart, but only as to post-petition Accounts on which K-Mart is the Account
Debtor
Concentration Percentages (clause (k) of the definition "Eligible Account"):
WalMart - 30%
Broder Bros. - 12.5%
13
SCHEDULE 6.1(c)(11)
ENVIRONMENTAL REPORTS
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM) Environmental
Site Assessment Cross Creek Apparel ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇ 10/25/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental
Site Assessment Cross Creek Apparel ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇ 10/29/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ 10/19/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ 10/19/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental 3145, 3147, and
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Wetumpka AL 10/22/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇ AL 10/24/01
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ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (▇▇ #2) Alexander City AL 10/29/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (▇▇ #3) Alexander City AL 10/29/01
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ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (▇▇ #1) Alexander City AL 10/29/01
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ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (▇▇ #4) Alexander City AL 10/29/01
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ESA1(TM)Environmental ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ (▇▇▇▇▇▇
Site Assessment ▇▇▇▇▇▇▇ Corporation Receiving Facility) Alexander City AL 10/31/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation Highway 22 West (Coosa #1) Alexander City AL 10/31/01
-------------------------------------------------------------------------------------------------------------------------
ESA1(TM)Environmental
Site Assessment ▇▇▇▇▇▇▇ Corporation ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 10/22/01
-------------------------------------------------------------------------------------------------------------------------
14
SCHEDULE 7.1(a)
ORGANIZATION
--------------------------------------------------------------------------------
STATES WHERE QUALIFIED TO
CONDUCT BUSINESS AS A
NAME FOREIGN ENTITY
--------------------------------------------------------------------------------
Mossy Oak Apparel Company Mississippi
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Athletic, Inc. Ohio, Alabama, Tennessee
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Athletic West, Inc. California, Kansas
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corporation, an Alabama corporation Georgia, Florida, New York
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Co-Op, LLC New York, New Jersey
--------------------------------------------------------------------------------
15
SCHEDULE 7.1(b)
CAPITALIZATION
BORROWER CAPITALIZATION
Borrower Owner Number of Shares
-------- ----- ----------------
Cross Creek Apparel, LLC Cross Creek Holdings, Inc. N/A
Cross Creek Holdings, Inc. ▇▇▇▇▇▇▇ Corporation 1,000
DeSoto ▇▇▇▇▇, Inc. ▇▇▇▇▇▇▇ Corporation 100
Jerzees Apparel, LLC ▇▇▇▇▇▇▇ Corporation N/A
Mossy Oak Apparel Company ▇▇▇▇▇▇▇ Corporation 1,000
RINTEL Properties, Inc. ▇▇▇▇▇▇▇ Corporation 1,000
▇▇▇▇▇▇▇ Apparel LLC ▇▇▇▇▇▇▇ Corporation (99%)
▇▇▇▇▇▇▇ Financial Services, Inc. (1%) N/A
▇▇▇▇▇▇▇ Asset Management, Inc. ▇▇▇▇▇▇▇ Corporation 800
Cross Creek Apparel, LLC 140
DeSoto ▇▇▇▇▇, Inc. 60
▇▇▇▇▇▇▇ Athletic, Inc. ▇▇▇▇▇▇▇ Corporation 100
▇▇▇▇▇▇▇ Athletic West, Inc. ▇▇▇▇▇▇▇ Corporation 100
▇▇▇▇▇▇▇ Financial Services, Inc. ▇▇▇▇▇▇▇ Corporation 1,000
▇▇▇▇▇▇▇ Yarn, LLC ▇▇▇▇▇▇▇ Corporation N/A
CAPITAL STOCK AGREEMENTS
Rights Agreement dated as of September 15, 1999 between ▇▇▇▇▇▇▇ and SunTrust
Bank, Atlanta, Georgia
PERSONS OR GROUPS OWNING MORE THAN FIVE PERCENT (5%) OF ▇▇▇▇▇▇▇ STOCK
1. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
2. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
3. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
4. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
5. AXA
6. ▇▇▇▇▇ ▇▇▇▇▇▇▇
7. ▇▇▇▇ ▇. ▇▇▇▇
8. Barclays Global Investors, N.A.
16
SCHEDULE 7.1(C)
SUBSIDIARIES; OWNERSHIP OF EQUITY INTERESTS
------------------------------------------------------------------------------------------------------------------------
Jurisdiction of Ownership Percentage and names of
Name Organization Immediate Parent or Parents
------------------------------------------------------------------------------------------------------------------------
Alexander City Flying Service, Inc. Alabama 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Cross Creek Apparel, LLC North Carolina 100% owned by Cross Creek Holdings,
Inc.
------------------------------------------------------------------------------------------------------------------------
Cross Creek Holdings, Inc. Delaware 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
DeSoto ▇▇▇▇▇, Inc. Alabama 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Jerzees Apparel, LLC Georgia 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
Mossy Oak Apparel Company Delaware 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
RINTEL Properties, Inc. Delaware 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Apparel LLC Alabama 99% owned by ▇▇▇▇▇▇▇, 1% owned by
▇▇▇▇▇▇▇ Financial Services, Inc.
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Asset Management, Inc. Delaware 80% owned by ▇▇▇▇▇▇▇; 14% owned
by Cross Creek Apparel, LLC; 6%
owned by DeSoto ▇▇▇▇▇, Inc.
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Athletic, Inc. Georgia 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Athletic West, Inc. Nevada 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Financial Services, Inc. Delaware 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corporation (Delaware) Delaware 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Servicing Co., Inc. Alabama 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Yarn, LLC Alabama 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Co-Op, LLC Guam 99% owned by ▇▇▇▇▇▇▇, 1% owned by
Jerzees Apparel, LLC
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Mexico, S.A. de C.V. Mexico 100% owned by ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
JERZEES Yucatan, S.A. de C.V. Mexico 98% owned by ▇▇▇▇▇▇▇, 2% owned by
▇▇▇▇▇▇▇ Financial Services, Inc.
------------------------------------------------------------------------------------------------------------------------
17
-----------------------------------------------------------------------------------------------------------------------------
JERZEES Campeche, S.A. de C.V. Mexico 98% owned by ▇▇▇▇▇▇▇, 2% owned by
▇▇▇▇▇▇▇ Financial Services, Inc.
-----------------------------------------------------------------------------------------------------------------------------
Athletic ▇▇ ▇▇▇▇▇▇▇, ▇.▇. de C.V. Mexico 99.998% owned by ▇▇▇▇▇▇▇, 0.002% owned
by ▇▇▇▇▇▇▇ Financial Services, Inc.
-----------------------------------------------------------------------------------------------------------------------------
Cross Creek ▇▇ ▇▇▇▇▇▇▇, ▇.▇. de C.V. Mexico 99.998% owned by Cross Creek Apparel,
LLC, 0.002% owned by ▇▇▇▇▇▇▇ Financial
Services, Inc.
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corp. Australia Pty Ltd Australia 99.99% owned by ▇▇▇▇▇▇▇ Apparel, LLC,
remainder owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Europe Limited United Kingdom 99.99% owned by Eagle R Holdings
Limited, remainder owned by ▇▇▇▇▇▇▇
Apparel LLC
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ do Brasil, Ltda. Brazil 99.99% owned by ▇▇▇▇▇▇▇, remainder
owned by ▇▇▇▇▇▇▇ Financial Services,
Inc.
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ France S.A.R.L. France 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ CZ s.r.o. Czech Republic 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Germany GmbH Germany 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Spain, S.L. Spain 99.8% owned by ▇▇▇▇▇▇▇, 0.2% owned by
▇▇▇▇▇▇▇ Apparel, LLC
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Japan KK Japan 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Italy Srl Italy 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
Cross Creek de Honduras, S.A. de C.V. Honduras 84% owned by ▇▇▇▇▇▇▇; 4% owned by
▇▇▇▇▇▇▇ Apparel, LLC; 4% owned by
▇▇▇▇▇▇▇ Financial Services, Inc.; 4%
owned by Cross Creek Apparel, LLC; 4%
owned by DeSoto ▇▇▇▇▇, Inc.
-----------------------------------------------------------------------------------------------------------------------------
JERZEES Buena Vista, S.A. Honduras 84% owned by ▇▇▇▇▇▇▇; 4% owned by
▇▇▇▇▇▇▇ Apparel, LLC; 4% owned by
▇▇▇▇▇▇▇ Financial Services, Inc.; 4%
owned by Cross Creek Apparel, LLC; 4%
owned by DeSoto ▇▇▇▇▇, Inc.
-----------------------------------------------------------------------------------------------------------------------------
JERZEES de Honduras, S.A. de C.V. Honduras 84% owned by ▇▇▇▇▇▇▇; 4% owned by
▇▇▇▇▇▇▇ Apparel, LLC; 4% owned by
▇▇▇▇▇▇▇ Financial Services, Inc.; 4%
owned by Cross Creek Apparel, LLC; 4%
owned by DeSoto ▇▇▇▇▇, Inc.
-----------------------------------------------------------------------------------------------------------------------------
JERZEES Choloma, S.A. Honduras 84% owned by ▇▇▇▇▇▇▇; 4% owned by ▇▇▇▇▇▇▇
Apparel, LLC; 4% owned by ▇▇▇▇▇▇▇
Financial Services, Inc.; 4% owned by
Cross Creek Apparel, LLC; 4% owned by
DeSoto ▇▇▇▇▇, Inc.
-----------------------------------------------------------------------------------------------------------------------------
18
-----------------------------------------------------------------------------------------------------------------------------
Servicios ▇▇▇▇▇▇▇, ▇.▇. de C.V. Mexico 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corp. Far East Limited (inactive) Hong Kong 99.99% owned by ▇▇▇▇▇▇▇, 0.01% owned
by ▇▇▇▇▇▇▇ Apparel, LLC
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Foreign Sales, Ltd. Barbados 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corp. Bangladesh Limited Bangladesh 99% owned by ▇▇▇▇▇▇▇ Europe Limited,
1% owned by Eagle R Holdings Limited
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corp. Canada Ltd. Canada 100% owned by ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Holdings Europe B.V. Netherlands 100% owned by ▇▇▇▇▇▇▇ Asset
Management, Inc.
-----------------------------------------------------------------------------------------------------------------------------
Ruservicios, S.A. de C.V. Honduras 84% owned by ▇▇▇▇▇▇▇; 4% owned by
▇▇▇▇▇▇▇ Apparel, LLC; 4% owned by
▇▇▇▇▇▇▇ Financial Services, Inc.; 4%
owned by Cross Creek Apparel, LLC; 4%
owned by DeSoto ▇▇▇▇▇, Inc.
-----------------------------------------------------------------------------------------------------------------------------
Eagle R. Holdings Limited United Kingdom 99.99% owned by ▇▇▇▇▇▇▇, remainder
owned by ▇▇▇▇▇▇▇ Apparel, LLC
-----------------------------------------------------------------------------------------------------------------------------
Citygate Textiles Limited United Kingdom 99.998% owned by ▇▇▇▇▇▇▇ Europe
Limited, 0.002% owned by ▇▇▇▇▇▇▇
Apparel, LLC
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Del Caribe, Inc. (incorporated but still Puerto Rico 100% owned by ▇▇▇▇▇▇▇ Corporation
in formation)
-----------------------------------------------------------------------------------------------------------------------------
All of the outstanding stock and securities of each domestic Subsidiary, and 65%
of the outstanding stock and securities of each foreign subsidiary, are pledged
to Wachovia Bank, N.A., as Collateral Agent, pursuant to the Guarantee and
Collateral Agreement dated as of December 14, 2001 among ▇▇▇▇▇▇▇ Corporation,
certain of its Subsidiaries and Wachovia Bank, N.A., as Collateral Agent (which
Liens will be released in accordance with subsection (i) of the definition of
"Permitted Liens").
All Subsidiaries are Consolidated Subsidiaries.
19
SCHEDULE 7.1(e)
COMPLIANCE WITH LAWS, ETC.
None.
20
SCHEDULE 7.1(g)
GOVERNMENTAL APPROVALS
ENVIRONMENTAL MATTERS
1. ▇▇▇▇▇▇▇ ▇. Alabama Department of Environmental Management, et al.,
pending before the Alabama Environmental Management Commission (appeal
of City of Alexander City's discharge permit)
2. All matters described in or otherwise disclosed in any report on Form
10-K or Form 10-Q filed by ▇▇▇▇▇▇▇ with the United States Securities
and Exchange Commission after December 31, 2000, including, without
limitation,
(a) ▇▇▇▇▇, et al. ▇. ▇▇▇▇▇▇▇ Corporation, et al., pending in the
Circuit Court of Jefferson County, Alabama (nuisance and
trespass claims);
(b) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Corporation, et al., pending in the Circuit
Court of Jefferson County, Alabama (nuisance and trespass
claims); and
(c) Proposed Consent Decree in the matter of United States of
America ▇. ▇▇▇▇▇▇▇ Corporation, et al., to be filed in the
United States District Court, Middle District of Alabama,
relating to alleged violations of the Clean Water Act in
connection with the discharge of waste at a water treatment
facility operated by the City of Alexander City, Alabama
21
SCHEDULE 7.1(h)
TITLE TO PROPERTIES
With respect to Real Estate, all those matters as shown on Chicago Title
Insurance Company Title Commitment Numbers 2472, WS2002-01152, 2-13521(M), 4435
and that certain title commitment prepared by ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.,
insuring Fleet Capital Corporation, for property located in DeKalb County,
Alabama.
22
SCHEDULE 7.1(i)
LIENS
See Schedule 1.1C and the items listed below.
---------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party Jurisdiction File Number File Date Collateral
---------------------------------------------------------------------------------------------------------------------------
Cross Creek OMNOVA Solutions, North Carolina 200105042981 7/26/01 Specified consigned goods
Apparel, LLC Inc. as successor Secretary of
as successor in in interest to State Amended
interest to Cross GenCorp 9/5/01
Creek Apparel, Performance
Inc. Chemicals
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ D & G Dyes, Inc. Alabama B2000-33854FS 8/22/00 All inventory sold to
Corporation Secretary of Debtor by Secured Party
State and all proceeds and
products thereof
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Dystar L.P. Alabama B 02 0045390 FS 01/28/02 Consigned products
Corporation Secretary of
State
---------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ BASF Corporation Alabama B 02 0010690 FS 1/10/02 BASF owned dyestuffs and
Corporation Secretary of textile auxiliaries on
State consignment
---------------------------------------------------------------------------------------------------------------------------
23
SCHEDULE 7.1(j)
INDEBTEDNESS AND GUARANTIES
1. Debt under any Control Agreement between a Borrower or a Subsidiary, on
the one hand, and any Clearing Bank providing cash management services
on the other hand, pursuant to which such Clearing Bank provides cash
management services.
2. Debt under the foreign exchange forward rate agreements provided to the
Borrowers by JPMorgan Chase Bank (formerly The Chase Manhattan Bank)
pursuant to the ISDA Master Agreement and Schedules dated as of July
24, 2001.
3. Debt of ▇▇▇▇▇▇▇ Europe Limited in an amount of up to(pound)15.0 million
owing to the Bank of Scotland, and the guaranty of such Debt by
▇▇▇▇▇▇▇.
4. Debt under certain receivables purchase and sale agreements by and
between ▇▇▇▇▇▇▇ Financial Services, Inc., and certain other Borrowers,
in each case as originally executed or as such agreements may be from
time to time supplemented, amended, renewed or extended.
5. Debt under Letters of Credit issued previously or from time to time by
First Union National Bank (now Wachovia Bank, N.A.) for the account of
one or more of the Borrowers or its Subsidiaries and for the benefit of
a supplier of a Borrower or a Subsidiary.
6. Intercompany Debt owing by RUServicios, Sociedad Anonima to ▇▇▇▇▇▇▇, as
evidenced by a promissory note in the principal amount of US$5,000,000.
7. ISDA Master Agreement and Schedule dated as of June 19, 1995 between
Trust Company Bank (now SunTrust Bank) and ▇▇▇▇▇▇▇.
8. All obligations under the Senior Note Documents and any guarantees
thereof.
9. Obligations under the Standby Letter of Credit issued by Aliant Bank to
the State of Alabama relating to workers' compensation coverage for
certain of the Borrowers in the amount of $350,000
10. Obligations under the Standby Letter of Credit issued by Fleet National
Bank to SunTrust Bank ("SunTrust") relating to loans by SunTrust to
Elasticos Centroamericanos Textiles, S.A. de C.V. ("Elcatex").
11. Obligations under the Standby Letter of Credit issued by Fleet National
Bank to SunTrust relating to Elcatex's obligations under the ISDA
Master Agreement and schedules dated as of July 28, 2000 between
SunTrust and Elcatex.
12. All obligations arising from the Loan Documents.
24
SCHEDULE 7.1(k)
LITIGATION
All matters described in or otherwise disclosed in any report on Form 10-K or
Form 10-Q filed by ▇▇▇▇▇▇▇ with the United States Securities and Exchange
Commission after December 31, 2000, including, without limitation,
(a) ▇▇▇▇▇, et al. ▇. ▇▇▇▇▇▇▇ Corporation, et al., pending in the
Circuit Court of Jefferson County, Alabama (nuisance and
trespass claims);
(b) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Corporation, et al., pending in the Circuit
Court of Jefferson County, Alabama (nuisance and trespass
claims); and
(c) Proposed Consent Decree in the matter of United States of
America ▇. ▇▇▇▇▇▇▇ Corporation, et al., to be filed in the
United States District Court, Middle District of Alabama,
relating to alleged violations of the Clean Water Act in
connection with the discharge of waste at a water treatment
facility operated by the City of Alexander City, Alabama.
25
SCHEDULE 7.1(l)
TAX MATTERS
(1) ▇▇▇▇▇▇▇ Corporation appeal of Tallapoosa County, Alabama 2000 ad
valorem tax assessment pending in Circuit Court of Tallapoosa County,
Alabama
(2) ▇▇▇▇▇▇▇ Corporation protest of Tallapoosa County, Alabama 2001 ad
valorem tax assessment pending in Circuit Court of Tallapoosa County,
Alabama
26
SCHEDULE 7.1(p)
ERISA
1. [▇▇▇▇▇▇▇ Corporation Health & Welfare Benefits Plan*
2. ▇▇▇▇▇▇▇ Corporation Premium Payment Plan
3. ▇▇▇▇▇▇▇ Corporation 401(k) Retirement Savings Plan**
4. ▇▇▇▇▇▇▇ Corporation Revised Pension Plan
5. ▇▇▇▇▇▇▇ Corporation Flexible Deferral Plan
6. ▇▇▇▇▇▇▇ Corporation Supplemental Retirement Benefit Plan
7. ▇▇▇▇▇▇▇ Corporation Supplemental Executive Retirement Plan
*The ▇▇▇▇▇▇▇ Corporation Health and Welfare Benefits Plan includes (1) a
post-retirement life insurance benefit and (2) hourly and salaried severance
plans.
** ▇▇▇▇▇▇▇ Corporation identified and corrected a prohibited transaction that
occurred in September 2001 related to the ▇▇▇▇▇▇▇ Corporation 401(k) Retirement
Savings Plan. The prohibited transaction involved slightly late 401(k)
contributions and the minimal excise tax of approximately $1,800 has been paid.]
27
SCHEDULE 7.1(t)
LOCATION OF OFFICES AND RECORDS
-------------------------------------------------------------------------------------------------------
BORROWER CHIEF EXECUTIVE OFFICE[S] OTHER OFFICES WITH BOOKS
AND RECORDS RELATING TO
ACCOUNTS
-------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corporation ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
Cross Creek Apparel, LLC Highway 52 South ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
Cross Creek Holdings, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
9th Floor-DE 5403 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
DeSoto ▇▇▇▇▇, Inc. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 609 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Financial Services, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Asset Management, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
RINTEL Properties, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ - ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
Jerzees Apparel, LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
Mossy Oak Apparel, LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Apparel LLC ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Yarn, LLC ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Athletic West, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Athletic, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------
28
SCHEDULE 7.1(u)
LOCATIONS OF INVENTORY AND/OR EQUIPMENT
PART A: U.S. LOCATIONS
(1) ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Alexander City Complex)
(2) ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
(Brundidge Plant)
(3) ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
(▇▇▇▇▇▇▇▇▇▇ ▇▇)
(4) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
(Columbus DC)
(5) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇
(Coosa River Complex)
(6) CaliforniaMart
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇
(Leased Office)
(7) Empire State Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
(Leased Office)
(8) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇
(Leased Office)
(9) ▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
(Leased Office)
29
(10) Dothan Warehouse*
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Leased Warehouse)
(11) Montgomery Warehouse LLC
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Leased Warehouse)
(12) ▇▇▇▇▇▇ Warehousing
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Leased Warehouse)
(13) New Site Packaging, LLC*
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
(Leased Warehouse)
(14) Rain Tree Business Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
(Leased Office)
(15) ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
(Leased Office)
(16) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Leased Office)
(17) Wideworld Sportswear
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(18) Authentic Brands (DEMCO)
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
* No Inventory or Equipment currently located at this location.
30
(19) JMW Sales Co. Inc.
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(20) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(21) North River Apparel*
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(22) Heritage Sportswear
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(23) Iris Apparel*
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(24) Intex Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(25) Key Buffalo
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(26) Embroidery Plus
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(27) Quality Apparel*
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
* No Inventory or Equipment currently located at this location.
31
(28) Quaker Boy
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(29) Royal Park
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(30) Royal Park
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(31) Virginia Garment
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(32) Wrightenberry ▇▇▇▇▇*
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(33) Triad Packaging & Distribution*
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(34) Quality Embroidery
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(35) Factory Screenworks
#▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
* No Inventory or Equipment currently located at this location.
32
(36) The Shirt Factory
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Contractor)
(37) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
(38) Riverside Drive
Mt. Airy, NC
(Cloth Plant/CC Knitting)
(39) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
(Leased Office)
(40) ▇▇▇▇ Warehouse
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇
(Leased Warehouse)
(41) Gold Leaf Warehouse
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇
(Leased Warehouse)
(42) Big ▇▇▇▇▇ Warehouse
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇
(Leased Warehouse)
(43) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(44) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Dyeing/Finishing/Warehouse)
(45) Windsocks
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
33
(46) ▇▇▇▇▇▇ Hosiery
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(47) Southern Footwear
▇▇▇-▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(48) USA Knit
▇▇▇▇ Industrial Loop
Ft. ▇▇▇▇▇, AL 35968
(Contractor)
(49) White Sox
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(50) Design & Cut
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(51) ▇▇▇▇▇▇ International, Inc.
Kuttner Plant
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(52) New South Apparel
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(53) Graphic Arts
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(54) F & E Sportswear
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
34
(55) Liberty Screen Print
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(56) Seams
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(57) The Stitching Post
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(58) University Screen Printing
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(59) MS Quality Apparel
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(60) Sandpiper Knitting
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(61) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9th Floor-DE 5403
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Leased Office)
(62) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Leased Office)
(63) ▇▇▇▇ ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Alexander City Retail Store)
(64) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Leased Office - Execution Pending)
35
(65) Bric ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
(Contractor)
(66) Western Imex
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(67) Vision Hosiery*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(68) B&S Hosiery*
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(69) Blue Chip Hosiery*
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
P.O. Box 980905
Ft. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(70) Locklear Hosiery*
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(71) ▇▇▇▇▇ ▇▇▇▇ Hosiery*
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(72) Heritage Footwear*
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
* No Inventory or Equipment currently located at this location.
36
(73) Finish Line*
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇.
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
(74) Crossroads*
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Contractor)
PART B: PUERTO RICO LOCATIONS
(1) American Storage
Road # 869 Km 1.5
Building C ▇▇. ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(leased warehouse)
* No Inventory or Equipment currently located at this location.
37
SCHEDULE 7.1(v)
EQUIPMENT
See Schedule 7.1(u).
38
SCHEDULE 7.1(w)
BANK ACCOUNTS
BANK NAME ACCT. NAME ACCT. NUMBER ACCT. TYPE
Aliant Bank, Alex. City ▇▇▇▇▇▇▇ Corporation 2509008 Checking-Regular Acct.
Aliant Bank, Alex. City ▇▇▇▇▇▇▇ Corporation 791938 Checking-Investment
Aliant Bank, Alex. City ▇▇▇▇▇▇▇ Corporation 2547449 Checking-Veba
Aliant Bank, Alex. City ▇▇▇▇▇▇▇ Corporation 2534770 Checking-Recreation Dept.
Aliant Bank, Alex. City ▇▇▇▇▇▇▇ Corporation 2510944 Checking-Dividend Fund
Aliant Bank, Alex. City Jerzees Apparel 55029744 Checking-Three Rivers
LLC
Aliant Bank, Alex. City Cross Creek 2537400 Checking-Cross Creek
Apparel Inc.
Amsouth Bank, Cullman The ▇▇▇▇▇▇▇ 1292919 [Lockbox]-Desoto ▇▇▇▇▇
Corporation
Compass Bank, ▇▇▇▇▇▇▇ Corporation 70465376 Checking-Montgomery ▇▇
▇▇▇▇▇▇▇▇▇▇
First of Omaha, Omaha ▇▇▇▇▇▇▇ Corporation 5768004 Credit Card Clearing
First of Omaha, Omaha ▇▇▇▇▇▇▇ Corporation 5773934 Credit Card Clearing
First of Omaha, Omaha ▇▇▇▇▇▇▇ Athletic 5924518 Credit Card Clearing
Suntrust Bank, Alex. City ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. 40004970 Checking-Enstar IDB
Suntrust Bank, Atlanta ▇▇▇▇▇▇▇ Financial 8800415633 Lockbox
Serv. Inc.
Suntrust Bank, Atlanta ▇▇▇▇▇▇▇ Financial 8800993241 Lockbox
Serv. Inc.
Suntrust Bank, Atlanta ▇▇▇▇▇▇▇ Financial 8801515910 Lockbox
Serv. Inc.
Suntrust Bank, Atlanta ▇▇▇▇▇▇▇ Financial 8801125819 Lockbox
Serv. Inc.
Suntrust Bank, Atlanta ▇▇▇▇▇▇▇ Corporation 8800187307 Checking
Wachovia, Atlanta ▇▇▇▇▇▇▇ Corporation 16198904 Checking
Aliant Bank, Alex. City Cross Creek 2537400 Checking
Apparel Inc.
First Union Bank Cross Creek 2078281000639 Checking
Apparel Inc.
First Union Bank Cross Creek 2078281000749 Checking
Apparel Inc.
First Union Bank Cross Creek 2078281024835 Checking
Apparel Inc.
First Union Bank ▇▇▇▇▇▇▇ Asset 2014229047252 Checking
Management
First Union Bank ▇▇▇▇▇▇▇ Financial 2000003431276 Checking
services
First Union Bank Cross Creek 2014229047333 Checking
Holdings, Inc
First Union Bank Rintel Properties 2014229047414 Checking
Aliant Bank, Alex. City Alexander City 2530236 Checking
Flying Service
Suntrust Bank ▇▇▇▇▇▇▇ Corp Non 11-03-125-1137485 Investment Account
Qualified Def Comp
Plan
Nationwide Life Insurance Corporate Flexible 28908900 Investment Account
Company Deferred Comp
Account
39
▇▇▇▇▇▇ Securities ▇▇▇▇▇▇▇ Corp 85165888029 Investment Account
First Union Bank ▇▇▇▇▇▇▇ Corp L/C 2000010560282 Checking
Reimbursement
Account
Bank Of America ▇▇▇▇▇▇▇ Corporation 003276019579 Checking
Delaware Trust Rintel Properties 6728000180 Investment Account
Delaware Trust Cross Creek 672800288 Investment Account
Holdings, Inc
Delaware Trust ▇▇▇▇▇▇▇ Financial 6728008761 Investment Account
Services
Delaware Trust ▇▇▇▇▇▇▇ Asset 6728000279 Investment Account
Management
Aliant Bank, Alex. City ▇▇▇▇▇▇▇ Co-op 55031307 Checking
SunTrust ▇▇▇▇▇▇▇ Financial 6801012144 Checking
Services
Wachovia Bank ▇▇▇▇▇▇▇ Corp (▇▇▇▇ 2002047 Investment Account
Rabbi Trust)
Aliant Bank, Alex City ▇▇▇▇▇▇▇ Co-op 55031315 Checking Payroll
Aliant Bank, Alex City ▇▇▇▇▇▇▇ Corporation 2510936 Checking Payroll
Aliant Bank, Alex City ▇▇▇▇▇▇▇ Corporation 2510928 Checking Payroll
Aliant Bank, Alex City ▇▇▇▇▇▇▇ Corporation 2521326 Checking Payroll
AmSouth Desoto ▇▇▇▇▇ 45074747 Checking Payroll
Aliant Bank, Alex City ▇▇▇▇▇▇▇ Corp Salaried 2510286 Checking Payroll
Retirement
Fichosa Bank 39-101-262-5 Checking
Fichosa Bank 39-121-1217-6 Checking
Fichosa Bank 29-102-1092-9 Checking
Fichosa Bank 29-121-1352-4 Checking
Fichosa Bank 39-101-268-9 Checking
Fichosa Bank 42-121-1278-8 Checking
Fichosa Bank 39-121-1216-7 Checking
Fichosa Bank 39-101-261-6 Checking
Banamex 829072114 Checking
Banamex 826673338 Checking
Banamex 647 175026 Checking
Banamex 647 177266 Checking
Banamex ▇▇▇ ▇▇▇▇▇▇▇ Checking
B.G.A. Banco Grupo el 215-101-292-8 Checking
Ahorro Hondureno
B.G.A. Banco Grupo el 215-101-058-5 Checking
Ahorro Hondureno
Banco Nacional de 44379000018 Checking
Mexico
AmSouth 45060274 Checking
AmSouth 100007520 Checking
AmSouth ▇▇▇▇▇▇▇▇▇▇ Checking
Aliant Bank 2533359
Banco Popular 052 444 619 Checking
40
SCHEDULE 7.1(x)
INTELLECTUAL PROPERTY
▇▇▇▇▇▇▇ Asset Management, Inc.
Federal Trademark Registrations
JURISDICTION ▇▇▇▇ CLASS REG DATE REG NO.
-----------------------------------------------------------------------------------------------------------------------
USA 4C - design 25 12/29/1998 2,213,930
-----------------------------------------------------------------------------------------------------------------------
USA Athletic Club 25 01/07/1997 2028087
-----------------------------------------------------------------------------------------------------------------------
USA Bargain Bag 25 06/20/1995 1900754
-----------------------------------------------------------------------------------------------------------------------
USA Big Foot and Design 25 07/10/1990 1605660
-----------------------------------------------------------------------------------------------------------------------
USA Built to Last 25 08/01/1989 1550238
-----------------------------------------------------------------------------------------------------------------------
USA ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇/▇▇/▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------
▇▇▇ Castle Design 25 04/19/1994 1831412
-----------------------------------------------------------------------------------------------------------------------
USA Concentric Circles and Double Ovals Design 25 03/09/1993 1756943
-----------------------------------------------------------------------------------------------------------------------
USA Country Cottons 25 09/17/1985 1360689
-----------------------------------------------------------------------------------------------------------------------
USA Cross Creek & ('bogey man') design 24 04/22/1997 2,054,178
-----------------------------------------------------------------------------------------------------------------------
USA Cross Creek & ('bogey man') design 25 04/22/1997 2,054,179
-----------------------------------------------------------------------------------------------------------------------
USA Cross Creek 25 10/07/1975 1022095
-----------------------------------------------------------------------------------------------------------------------
USA DD and design (Four Old Time Football Players 25 08/20/1991 1654384
design)
-----------------------------------------------------------------------------------------------------------------------
USA DeSoto Outdoors and Design 25 01/19/1993 1747193
-----------------------------------------------------------------------------------------------------------------------
USA Desoto Player's Club 25 01/02/1990 1575150
-----------------------------------------------------------------------------------------------------------------------
USA Desoto Player's Club and design (old time 25 07/30/1996 1,989,417
football players w/words)
-----------------------------------------------------------------------------------------------------------------------
USA Focus Design 25 06/13/1989 1543669
-----------------------------------------------------------------------------------------------------------------------
USA Get Tough 18 & 25 04/22/1997 2,055,798
-----------------------------------------------------------------------------------------------------------------------
USA Get Tough R ▇▇▇▇▇▇▇ Athletic 18 & 25 02/04/1997 2,035,968
-----------------------------------------------------------------------------------------------------------------------
USA Golf is War Do Battle in Cross Creek and design 25 09/22/1998 2,190,594
-----------------------------------------------------------------------------------------------------------------------
USA High Cotton (stylized) 25 04/24/1990 1593129
-----------------------------------------------------------------------------------------------------------------------
USA Huntley of York 25 11/15/1977 1077467
-----------------------------------------------------------------------------------------------------------------------
USA Jerzees 25 02/22/2000 2322101
-----------------------------------------------------------------------------------------------------------------------
USA Jerzees 25 04/14/1992 1683032
-----------------------------------------------------------------------------------------------------------------------
USA Jerzees Activewear Z and design 25 07/04/2000 2363671
-----------------------------------------------------------------------------------------------------------------------
USA Jerzees logo 25 05/29/1984 1280293
-----------------------------------------------------------------------------------------------------------------------
USA Jerzees Cotton Sweats 25 06/23/1992 1696178
-----------------------------------------------------------------------------------------------------------------------
USA Jerzees World Class and design 25 07/02/1996 1983435
-----------------------------------------------------------------------------------------------------------------------
USA Lady Player 25 03/15/1994 1826428
-----------------------------------------------------------------------------------------------------------------------
USA Design - four men in top hats 25 01/30/1990 1580207
-----------------------------------------------------------------------------------------------------------------------
USA Participant 25 05/11/1999 2,245,153
-----------------------------------------------------------------------------------------------------------------------
USA Performance Cushion 25 02/28/1995 1880688
-----------------------------------------------------------------------------------------------------------------------
USA Performance Club 25 06/06/1995 1897592
-----------------------------------------------------------------------------------------------------------------------
USA Player's Pride 25 01/03/1995 1871967
-----------------------------------------------------------------------------------------------------------------------
USA Player's Performance 25 03/01/1994 1824475
-----------------------------------------------------------------------------------------------------------------------
42
JURISDICTION ▇▇▇▇ CLASS REG DATE REG NO.
-----------------------------------------------------------------------------------------------------------------------
USA Pro Cotton 25 05/23/1989 1540603
-----------------------------------------------------------------------------------------------------------------------
USA Qualitized 25 07/24/1962 734966
-----------------------------------------------------------------------------------------------------------------------
USA R logo 25 12/02/1997 2118119
-----------------------------------------------------------------------------------------------------------------------
USA R logo 25 10/29/1974 996847
-----------------------------------------------------------------------------------------------------------------------
USA R logo 24 12/09/1975 1026794
-----------------------------------------------------------------------------------------------------------------------
USA R logo 25 11/05/1974 997505
-----------------------------------------------------------------------------------------------------------------------
USA R ▇▇▇▇▇▇▇ Athletic (and design) 25 12/09/1997 2120076
-----------------------------------------------------------------------------------------------------------------------
USA R ▇▇▇▇▇▇▇ Athletic/High Cotton 25 10/28/1986 1415076
-----------------------------------------------------------------------------------------------------------------------
USA R ▇▇▇▇▇▇▇ Athletic 18 & 25 11/07/1995 1932436
-----------------------------------------------------------------------------------------------------------------------
USA Red Eagle Trading Co. 25 08/14/2001 2477855
-----------------------------------------------------------------------------------------------------------------------
USA Red Eagle Trading Co. By Jerzees and design 25 09/04/2001 2484965
-----------------------------------------------------------------------------------------------------------------------
USA ▇▇▇▇▇▇▇ National & design 25 08/27/1985 1356767
-----------------------------------------------------------------------------------------------------------------------
USA Softwick 24 07/10/2001 2467882
-----------------------------------------------------------------------------------------------------------------------
USA Super Sweats 25 06/23/1981 1158184
-----------------------------------------------------------------------------------------------------------------------
USA The Exceptional Shirt 25 05/01/1984 1276266
-----------------------------------------------------------------------------------------------------------------------
USA The Experience Shows 25 09/08/1992 1713836
-----------------------------------------------------------------------------------------------------------------------
USA The Golfer and Design 25 06/21/1988 1493214
-----------------------------------------------------------------------------------------------------------------------
43
USA The Worker and Design 25 01/26/1993 1748611
-----------------------------------------------------------------------------------------------------------------------
USA Three Rivers 25 09/17/1996 2001576
-----------------------------------------------------------------------------------------------------------------------
USA TOURTECH 25 08/11/1998 2,180,235
-----------------------------------------------------------------------------------------------------------------------
USA TRANSFORMX 25 02/26/2002 2543052
-----------------------------------------------------------------------------------------------------------------------
USA Tweed Fleece 25 12/07/1999 2299072
-----------------------------------------------------------------------------------------------------------------------
USA YorkTown 25 08/11/1964 775016
-----------------------------------------------------------------------------------------------------------------------
USA Z CLASS 25 11/06/2001 2504093
-----------------------------------------------------------------------------------------------------------------------
USA ZT 25 12/05/2000 2411447
-----------------------------------------------------------------------------------------------------------------------
USA ZT and design 25 08/07/2001 2475783
-----------------------------------------------------------------------------------------------------------------------
44
▇▇▇▇▇▇▇ Asset Management, Inc.
Trademark Applications
JURISDICTION MARKS CLASS REG DATE REG NO.
---------------------------------------------------------------------------------------------------
USA R logo 25 02/27/2001 76216732
---------------------------------------------------------------------------------------------------
USA C C design(*) 25 07/21/2000 76093889
---------------------------------------------------------------------------------------------------
USA DRI POWER 25 10/29/2001 76330785
---------------------------------------------------------------------------------------------------
USA HERCUFIBRE 24 05/25/2001 76263343
---------------------------------------------------------------------------------------------------
USA JERZEES rectangle design 25 10/16/2001 76325996
---------------------------------------------------------------------------------------------------
USA Jerzees Cazuals 25 11/13/2001 76336768
---------------------------------------------------------------------------------------------------
USA Jerzees CaZuals and design 25 08/28/2000 76118145
---------------------------------------------------------------------------------------------------
USA JERZEES CASUAL COMFORT 25 10/29/2001 76331289
---------------------------------------------------------------------------------------------------
USA JERZEES OUTDOORS 25 07/21/2000 76093890
---------------------------------------------------------------------------------------------------
USA Northern Woodsman 25 10/29/2001 76330787
---------------------------------------------------------------------------------------------------
USA Performance Pique 25 06/05/2001 76266784
---------------------------------------------------------------------------------------------------
USA ▇▇▇▇▇▇▇ 25 08/18/2000 76112386
---------------------------------------------------------------------------------------------------
USA ▇▇▇▇▇▇▇ Athletic 25, 28 02/27/2001 76216841
---------------------------------------------------------------------------------------------------
USA ▇▇▇▇▇▇▇ Athletic Power 25 10/29/2001 76330768
---------------------------------------------------------------------------------------------------
USA The Radiator 25 10/16/2000 76148492
---------------------------------------------------------------------------------------------------
USA Storm Power 25 10/29/2001 76330765
---------------------------------------------------------------------------------------------------
USA Stretch Power 25 10/29/2001 76330789
---------------------------------------------------------------------------------------------------
USA THERMA POWER 25 10/29/2001 76330788
---------------------------------------------------------------------------------------------------
USA UltraStretch 25 01/16/2001 76194044
In the name of ▇▇▇▇▇ Packaging
Company
---------------------------------------------------------------------------------------------------
USA Vintage Varsity 25 10/29/2001 76330770
---------------------------------------------------------------------------------------------------
USA Z and Diamond design 35 02/16/2001 76214510
---------------------------------------------------------------------------------------------------
USA Z and Diamond design 25 02/16/2001 76214511
---------------------------------------------------------------------------------------------------
(*) ▇▇▇▇ ▇▇▇ has filed an opposition action with the PTO to this application
citing certain Champion trademarks.
45
Cross Creek Apparel, LLC
Foreign Trademark Registrations
JURISDICTION MARKS CLASS REG. DATE REG. NO.
--------------------------------------------------------------------------------------------------------------
Armenia Cross Creek 25 06/01/1997 1959
--------------------------------------------------------------------------------------------------------------
Australia Cross Creek 25 01/07/1998 752294
--------------------------------------------------------------------------------------------------------------
Australia Cross Creek & 4C design 25 08/10/1977 A310099
--------------------------------------------------------------------------------------------------------------
Australia Cross Creek 42 02/07/1996 701938
--------------------------------------------------------------------------------------------------------------
Belize Cross Creek & 4C design 25 08/22/1996 7448
--------------------------------------------------------------------------------------------------------------
Benelux Cross Creek & 4C design 25 05/26/1977 345608
--------------------------------------------------------------------------------------------------------------
Canada Cross Creek Pro Collection 25 01/30/1998 TMA488777
--------------------------------------------------------------------------------------------------------------
Canada Cross Creek 25 12/27/1996 468,017
--------------------------------------------------------------------------------------------------------------
Canada Cross Creek & 4C design 11/16/1979 237233
--------------------------------------------------------------------------------------------------------------
Costa Rica Cross Creek 25 01/20/1997 98917
--------------------------------------------------------------------------------------------------------------
Costa Rica Country Cottons 25 01/20/1997 98916
--------------------------------------------------------------------------------------------------------------
CTM~~(EU or EC member 4C logo 18, 25, 28, 04/20/1999 451922
countries are: ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
Finland, France,
Germany, Greece,
Ireland, Italy,
Luxembourg,
Netherlands, Portugal,
Spain, Sweden, and UK)
--------------------------------------------------------------------------------------------------------------
Ecuador Cross Creek 25 11/26/1991 2995-91
--------------------------------------------------------------------------------------------------------------
El ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Creek 25 03/17/1998 148, bk. 72
--------------------------------------------------------------------------------------------------------------
El Salvador Country Cottons 25 03/17/1998 149, bk. 72
--------------------------------------------------------------------------------------------------------------
France Cross Creek & 4C 25 06/03/1977 1406792
--------------------------------------------------------------------------------------------------------------
Germany Country Cottons 25 06/14/1994 2092006
--------------------------------------------------------------------------------------------------------------
Germany, West Cross Creek & 4C design 25 05/28/1977 967036
--------------------------------------------------------------------------------------------------------------
Guatemala Cross Creek 25 09/01/1997 88630
--------------------------------------------------------------------------------------------------------------
Honduras Country Cottons 25 04/04/1997 68345
--------------------------------------------------------------------------------------------------------------
Honduras Cross Creek 25 06/30/1997 69003
--------------------------------------------------------------------------------------------------------------
Hong Kong Cross Creek 25 08/16/1990 B00422/94
--------------------------------------------------------------------------------------------------------------
Indonesia Cross Creek 25 05/04/1995 333159
--------------------------------------------------------------------------------------------------------------
Indonesia Cross Creek 42 08/15/1997 380993
--------------------------------------------------------------------------------------------------------------
Italy Cross Creek & 4C design 25 06/10/1977 345940
--------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇ design 17 07/29/1985 1788046
--------------------------------------------------------------------------------------------------------------
Korea Cross Creek 27 11/11/1991 225250
--------------------------------------------------------------------------------------------------------------
Korea Crosscreek 45 04/28/1995 312398
--------------------------------------------------------------------------------------------------------------
Kuwait Cross Creek 25 02/15/1997 28227
--------------------------------------------------------------------------------------------------------------
Nicaragua Cross Creek 25 06/30/1997 37802
--------------------------------------------------------------------------------------------------------------
Nicaragua Country Cottons 25 06/30/1998 37803
--------------------------------------------------------------------------------------------------------------
Pakistan Cross Creek 25 08/29/1994 126366
--------------------------------------------------------------------------------------------------------------
Panama Country Cottons 25 06/06/1996 81227
--------------------------------------------------------------------------------------------------------------
Panama Cross Creek 25 05/27/1992 61379
--------------------------------------------------------------------------------------------------------------
Singapore ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇/▇▇/▇▇▇▇ ▇▇▇/▇▇▇▇▇▇
--------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Cross Creek 25 09/15/1994 B94/9993
--------------------------------------------------------------------------------------------------------------
Sri Lanka Cross Creek 25 09/09/1994 71785
--------------------------------------------------------------------------------------------------------------
Sweden Country Cottons 25 02/16/1996 308664
--------------------------------------------------------------------------------------------------------------
Sweden Cross Creek & 4C design 25 10/07/1977 160998
--------------------------------------------------------------------------------------------------------------
Switzerland Cross Creek & 4C design 25 07/18/1977 289561
--------------------------------------------------------------------------------------------------------------
Thailand Cross Creek 25 TM99333
--------------------------------------------------------------------------------------------------------------
46
JURISDICTION MARKS CLASS REG DATE REG NO.
--------------------------------------------------------------------------------------------------------------
Thailand (3) CRISS CROSS 25 10/21/1999 tm100502
--------------------------------------------------------------------------------------------------------------
Turkey Cross Creek 25 08/14/1998 98/011226
--------------------------------------------------------------------------------------------------------------
United Kingdom Cross Creek & 4C design 25 7/13/1977 B1080966
--------------------------------------------------------------------------------------------------------------
United Kingdom Country Cottons 25 3/22/1996 1572497
--------------------------------------------------------------------------------------------------------------
Vietnam Cross Creek 25 1/06/1996 22970
--------------------------------------------------------------------------------------------------------------
Cross Creek Apparel, LLC
Trademark Applications
JURISDICTION ▇▇▇▇ CLASS APP FILED SERIAL NO.
-----------------------------------------------------------------------------------------------
India Cross Creek 25 08/30/1994 638433
-----------------------------------------------------------------------------------------------
Malaysia CROSS CREEK 18 03/02/2001 2001-02691*
-----------------------------------------------------------------------------------------------
Malaysia Cross Creek 24 03/02/2001 2001-02693*
-----------------------------------------------------------------------------------------------
Malaysia Cross Creek 25 09/05/1994 9408202
-----------------------------------------------------------------------------------------------
Malaysia Cross Creek 28 03/02/2001 2001-02692*
-----------------------------------------------------------------------------------------------
Philippines Cross Creek 25 11/23/1994 96558
-----------------------------------------------------------------------------------------------
Philippines Cross Creek 42 02/27/1997 118358
-----------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Corporation
Trademark Registrations
JURISDICTION MARKS CLASS REG DATE REG NO.
----------------------------------------------------------------------------------------------------
USA Discus 25 01/17/1978 1082718
----------------------------------------------------------------------------------------------------
USA Discus and design 25 06/24/1997 2074559
----------------------------------------------------------------------------------------------------
USA Discus Athletic and design 25 09/10/1996 1999602
----------------------------------------------------------------------------------------------------
USA Discus Athletic and design 25 05/28/1996 1976957
----------------------------------------------------------------------------------------------------
USA Discus Athletic 25 05/28/1996 1976958
----------------------------------------------------------------------------------------------------
USA Discus Athletic and design 25 07/23/1991 1651552
----------------------------------------------------------------------------------------------------
USA Sport by Discus Athletic 25 11/18/1997 2114356
and design
----------------------------------------------------------------------------------------------------
USA Sport by Discus Athletic 25 11/04/1997 2110858
----------------------------------------------------------------------------------------------------
USA Discus Classic Athletic 25 03/09/1999 2230217
----------------------------------------------------------------------------------------------------
USA Discus Sport and design 25 10/12/1999 2285724
----------------------------------------------------------------------------------------------------
USA Discus Sport 25 12/08/1998 2209372
----------------------------------------------------------------------------------------------------
USA Discus Thrower design 25 02/18/1997 2039121
----------------------------------------------------------------------------------------------------
Albania Cross Creek 25 10/07/1985 5595
----------------------------------------------------------------------------------------------------
Albania Jerzees logo 25 10/04/1990 5596
----------------------------------------------------------------------------------------------------
47
JURISDICTION MARKS CLASS REG DATE REG NO.
---------------------------------------------------------------------------------------------------
Albania R ▇▇▇▇▇▇▇ Athletic 25 10/04/1990 5597
---------------------------------------------------------------------------------------------------
Algeria Jerzees logo 25 08/31/1993 046803
---------------------------------------------------------------------------------------------------
Andorra Egale R 10/22/2001 17658
---------------------------------------------------------------------------------------------------
Andorra ▇▇▇▇▇▇▇ Athletic 10/22/2001 17659
---------------------------------------------------------------------------------------------------
Argentina Cross Creek 25 12/30/1993 1492036
---------------------------------------------------------------------------------------------------
Argentina Discus Athletic 25 11/30/1993 1485446
---------------------------------------------------------------------------------------------------
Argentina Jerzees logo 42 12/30/1994 1493498
---------------------------------------------------------------------------------------------------
Argentina Jerzees logo 25 06/06/1997 1634946
---------------------------------------------------------------------------------------------------
Argentina R logo 28 05/31/1994 1523690
---------------------------------------------------------------------------------------------------
Argentina R logo 18 05/31/1994 1523689
---------------------------------------------------------------------------------------------------
Argentina R ▇▇▇▇▇▇▇ Athletic 42 12/30/1993 1493496
---------------------------------------------------------------------------------------------------
Argentina R ▇▇▇▇▇▇▇ Athletic 25 07/30/1993 1453579
---------------------------------------------------------------------------------------------------
Argentina ▇▇▇▇▇▇▇ Athletic 28 05/31/1994 1523688
---------------------------------------------------------------------------------------------------
Argentina ▇▇▇▇▇▇▇ Athletic 18 05/31/1994 1523687
---------------------------------------------------------------------------------------------------
Armenia Cross Creek 25 06/01/1997 1959
---------------------------------------------------------------------------------------------------
Armenia Jerzees logo 25 07/01/1997 1958
---------------------------------------------------------------------------------------------------
Armenia R ▇▇▇▇▇▇▇ Athletic 25 06/11/1997 1762
---------------------------------------------------------------------------------------------------
Australia Discus Athletic and design 25 04/18/1995 619956
---------------------------------------------------------------------------------------------------
Australia Discus Classic Athletic 25 09/09/1997 743478
---------------------------------------------------------------------------------------------------
Australia Jerzees logo and block 25 02/23/1990 A529374
letters
---------------------------------------------------------------------------------------------------
Australia R ▇▇▇▇▇▇▇ Athletic 25 02/23/1990 A529373
---------------------------------------------------------------------------------------------------
Australia Red Eagle Trading Co 18, 25, 35 01/02/1997 724995
---------------------------------------------------------------------------------------------------
Austria Discus Athletic and design 25 08/31/1992 143691
---------------------------------------------------------------------------------------------------
Austria Jerzees by ▇▇▇▇▇▇▇ logo 25 04/22/1987 115838
---------------------------------------------------------------------------------------------------
Austria R ▇▇▇▇▇▇▇ logo 25 04/22/1987 115839
---------------------------------------------------------------------------------------------------
Azerbaijan Cross Creek 25 03/18/1994 960228
---------------------------------------------------------------------------------------------------
Azerbaijan Jerzees logo 25 03/18/1994 960230
---------------------------------------------------------------------------------------------------
Azerbaijan R ▇▇▇▇▇▇▇ Athletic 25 03/18/1994 960229
---------------------------------------------------------------------------------------------------
Bangladesh Jerzees logo 25 09/05/1994 41590
---------------------------------------------------------------------------------------------------
Belarus Cross Creek 25 12/20/1993 2405
---------------------------------------------------------------------------------------------------
Belarus Jerzees logo 25 12/20/1993 2403
---------------------------------------------------------------------------------------------------
Belarus R ▇▇▇▇▇▇▇ Athletic 25 12/20/1993 2404
---------------------------------------------------------------------------------------------------
Belize Jerzees logo 25 09/04/1996 7447
---------------------------------------------------------------------------------------------------
Belize R logo 18 08/22/1996 7452
---------------------------------------------------------------------------------------------------
Belize R ▇▇▇▇▇▇▇ logo 25 08/22/1996 7450
---------------------------------------------------------------------------------------------------
Belize ▇▇▇▇▇▇▇ Athletic 18 03/05/1997 7651
---------------------------------------------------------------------------------------------------
Belize ▇▇▇▇▇▇▇ Athletic 25 08/22/1996 7451
---------------------------------------------------------------------------------------------------
48
JURISDICTION MARKS CLASS REG DATE REG NO.
--------------------------------------------------------------------------------------------------
Benelux Discus Athletic 25 08/03/1992 508240
--------------------------------------------------------------------------------------------------
Benelux Jerzees logo 25 10/08/1987 437852
--------------------------------------------------------------------------------------------------
Benelux R ▇▇▇▇▇▇▇ logo 25 09/10/1982 386817
--------------------------------------------------------------------------------------------------
Boliva Discus Athletic and design 25 03/24/1993 015731
--------------------------------------------------------------------------------------------------
Bolivia Cross Creek 25 01/11/1994 55600-C
--------------------------------------------------------------------------------------------------
Bolivia Jerzees 42 01/11/1994 55601-C
--------------------------------------------------------------------------------------------------
Bolivia Jerzees logo 25 01/11/1994 55597-C
--------------------------------------------------------------------------------------------------
Bolivia R ▇▇▇▇▇▇▇ Athletic 42 01/11/1994 55598-C
--------------------------------------------------------------------------------------------------
Bolivia R Russell Athletic 25 01/11/1994 55599-C
--------------------------------------------------------------------------------------------------
Brazil Cross Creek 25.10 & 20 10/29/1996 816072990
--------------------------------------------------------------------------------------------------
Brazil Discus Athletic 25 03/13/2001 817399445
--------------------------------------------------------------------------------------------------
Brazil Discus Athletic and design 25 02/13/2001 816676313
--------------------------------------------------------------------------------------------------
Brazil Jerzees 25~(local 25.10; 07/06/1999 819787086
25.20 & 25.30)
--------------------------------------------------------------------------------------------------
Brazil R Russell Athletic 35 (local 40.15) 07/14/1998 818892200
--------------------------------------------------------------------------------------------------
Brazil R Russell Athletic 18 03/20/2001 818892218
--------------------------------------------------------------------------------------------------
Brazil R Russell Athletic 25 08/26/1997 815345160
--------------------------------------------------------------------------------------------------
Brazil R Russell Athletic 25 (local 11/16/1999 819878588
classes 25.10,
25.20 & 25.30)
--------------------------------------------------------------------------------------------------
Bulgaria Cross Creek 25 03/13/1991 20056
--------------------------------------------------------------------------------------------------
Bulgaria Discus Athletic 25 05/31/1993 20500
--------------------------------------------------------------------------------------------------
Bulgaria Jerzees logo 25 08/27/1990 19606
--------------------------------------------------------------------------------------------------
Bulgaria R Russell Athletic 25 08/27/1990 19605
--------------------------------------------------------------------------------------------------
Canada Discus 25 12/19/1980 254022
--------------------------------------------------------------------------------------------------
Canada Discus Athletic 25 09/04/1992 402417
--------------------------------------------------------------------------------------------------
Canada Discus Classic Athletic 25 02/23/1999 508334
--------------------------------------------------------------------------------------------------
Canada Get Tough 25 03/18/1997 472,971
--------------------------------------------------------------------------------------------------
Canada High Cotton (stylized) 25 08/30/1996 462,769
--------------------------------------------------------------------------------------------------
Canada Jerzees 25 12/29/1995 452,293
--------------------------------------------------------------------------------------------------
Canada Jerzees World Class & 25 11/18/1997 485651
Design
--------------------------------------------------------------------------------------------------
Canada R Logo 24 and 25 03/14/1980 240946
--------------------------------------------------------------------------------------------------
Canada R logo 25 03/05/1997 472,131
--------------------------------------------------------------------------------------------------
Canada R Russell Athletic 18 & 25 10/20/1998 TMA502,117
--------------------------------------------------------------------------------------------------
Canada Russell 24 & 25 03/14/1980 240945
--------------------------------------------------------------------------------------------------
Canada Russell National & design 25 09/06/1974 TMA201,607
--------------------------------------------------------------------------------------------------
49
JURISDICTION MARKS CLASS REG DATE REG NO.
--------------------------------------------------------------------------------------------------
Chile Cross Creek 25 06/09/1992 387517
--------------------------------------------------------------------------------------------------
Chile Discus Athletic 25 05/19/2002 386.997
--------------------------------------------------------------------------------------------------
Chile Discus Athletic and Design CE (local) 08/26/1992 409.624
--------------------------------------------------------------------------------------------------
Chile Discus Athletic University 25 07/22/1993 409.625
Shop
--------------------------------------------------------------------------------------------------
Chile Discus Athletic University CE (local) 07/22/1993 409.626
Shop
--------------------------------------------------------------------------------------------------
Chile Jerzees 25 05/24/1996 461.645
--------------------------------------------------------------------------------------------------
Chile Jerzees CE 01/04/1993 399700
--------------------------------------------------------------------------------------------------
Chile Jerzees logo 25 01/17/1997 477.234
--------------------------------------------------------------------------------------------------
Chile R logo 25 02/13/1998 504.296
--------------------------------------------------------------------------------------------------
Chile R Russell Athletic IE 05/10/1993 406.401
--------------------------------------------------------------------------------------------------
Chile R Russell Athletic 25 12/22/1995 454.754
--------------------------------------------------------------------------------------------------
Chile R Russell Athletic 18 06/09/1994 427516
--------------------------------------------------------------------------------------------------
Chile R Russell Athletic (All of CE 12/28/1993 418945
Chile except Santiago)
--------------------------------------------------------------------------------------------------
Chile R Russell Athletic CE 05/10/1993 406.402
(Santiago only)
--------------------------------------------------------------------------------------------------
Chile Russell 35 06/03/1993 407372
--------------------------------------------------------------------------------------------------
Chile Russell Athletic 25 03/09/1995 440.803
--------------------------------------------------------------------------------------------------
China Cross Creek 25 04/20/1992 592033
--------------------------------------------------------------------------------------------------
China Discus Athletic and design 25 01/20/1995 726578
--------------------------------------------------------------------------------------------------
China Discus Classic Athletic 25 07/14/1999 1283380
--------------------------------------------------------------------------------------------------
China Jerzees logo 40 04/19/1992 592032
--------------------------------------------------------------------------------------------------
China R logo 25 03/21/2001 1541275
--------------------------------------------------------------------------------------------------
China R Russell Athletic 25 03/21/2001 1541274
--------------------------------------------------------------------------------------------------
China Russell 25 06/07/2001 1581200
--------------------------------------------------------------------------------------------------
Colombia Cross Creek 25 11/30/1993 148740
--------------------------------------------------------------------------------------------------
Colombia Jerzees logo 25 05/30/1994 163344
--------------------------------------------------------------------------------------------------
Colombia R Russell Athletic 25 06/30/1994 166377
--------------------------------------------------------------------------------------------------
Colombia R Russell Athletic & design 42 07/21/1997 199291
--------------------------------------------------------------------------------------------------
Costa Rica Jerzees 25 05/29/1995 91481
--------------------------------------------------------------------------------------------------
Costa Rica R Russell Athletic 25 05/29/1995 91480
--------------------------------------------------------------------------------------------------
Croatia Cross Creek 25 02/25/1991 Z921252
--------------------------------------------------------------------------------------------------
Croatia Jerzees logo 25 08/13/1990 Z 921251A
--------------------------------------------------------------------------------------------------
Croatia R Russell Athletic 25 08/13/1990 Z 921245A
--------------------------------------------------------------------------------------------------
CTM~~EU or EC Cross Creek 18, 25, 28, 35 02/19/1999 445841
countries
are:~Austria,
Belgium, Denmark,
Finland, France,
Germany, Greece,
Ireland, Italy,
Luxembourg,
Netherlands,
Portugal, Spain,
Sweden, and UK
--------------------------------------------------------------------------------------------------
50
JURISDICTION MARKS CLASS REG DATE REG NO.
--------------------------------------------------------------------------------------------------------
CTM Discus Classic Athletic 25 06/14/1999 657866
--------------------------------------------------------------------------------------------------------
CTM Three Rivers 24, 25 08/09/1999 000712695
--------------------------------------------------------------------------------------------------------
CTM~~EU or EC Eagle R logo 18, 25 28, 35 02/12/1999 451765
countries
are:~Austria,
Belgium, Denmark,
Finland, France,
Germany, Greece,
Ireland, Italy,
Luxembourg,
Netherlands,
Portugal, Spain,
Sweden, and UK
--------------------------------------------------------------------------------------------------------
CTM~~EU or EC Jerzees 18, 25, 28, 35 06/28/2000 451807
countries
are:~Austria,
Belgium, Denmark,
Finland, France,
Germany, Greece,
Ireland, Italy,
Luxembourg,
Netherlands,
Portugal, Spain,
Sweden, and UK
--------------------------------------------------------------------------------------------------------
Czech Republic Discus Athletic and Design 25 03/21/1994 175348
--------------------------------------------------------------------------------------------------------
Czech Republic Jerzees logo 25 08/09/1990 168812
--------------------------------------------------------------------------------------------------------
Czech Republic R Russell Athletic 25 08/09/1990 168811
--------------------------------------------------------------------------------------------------------
Denmark Cross Creek 25 10/02/1992 9016/92
--------------------------------------------------------------------------------------------------------
Denmark Discus Athletic 25 08/07/1992 07429-1992
--------------------------------------------------------------------------------------------------------
Denmark Jerzees by Russell logo 25 10/16/1987 347987
--------------------------------------------------------------------------------------------------------
Denmark R logo 18 12/18/1992 11615/92
--------------------------------------------------------------------------------------------------------
Denmark R Russell logo 25 11/02/1984 380084
--------------------------------------------------------------------------------------------------------
Denmark Russell Corporation 18 & 25 11/04/1994 VR07.485 1994
--------------------------------------------------------------------------------------------------------
Djibouti Jerzees logo 25 11/02/1994 AJVOL101F5N83
--------------------------------------------------------------------------------------------------------
Ecuador Jerzees 42 10/01/1992 39492
--------------------------------------------------------------------------------------------------------
Ecuador Jerzees logo 25 09/21/1992 223892
--------------------------------------------------------------------------------------------------------
Ecuador R Russell Athletic 25 11/26/1991 2994-91
--------------------------------------------------------------------------------------------------------
51
JURISDICTION MARKS CLASS REG DATE REG NO.
--------------------------------------------------------------------------------------------------
Ecuador R Russell Athletic 42 10/01/1992 393-92
--------------------------------------------------------------------------------------------------
Egypt Jerzees logo 25 09/27/1994 78079
--------------------------------------------------------------------------------------------------
Egypt R Russell Athletic 25 04/19/1994 78080
--------------------------------------------------------------------------------------------------
Eire/Ireland Jerzees Built To Last logo 25 05/05/1988 B131238
--------------------------------------------------------------------------------------------------
Eire/Ireland Jerzees logo (old style) 25 10/08/1986 B130956
--------------------------------------------------------------------------------------------------
Eire/Ireland R Russell logo 25 10/08/1986 B130955
--------------------------------------------------------------------------------------------------
El Salvador Jerzees logo 25 02/17/1998 84, book 69
--------------------------------------------------------------------------------------------------
El Salvador R Russell Athletic 25 06/05/1998 188,book 77
--------------------------------------------------------------------------------------------------
Estonia Cross Creek 25 03/26/1991 09638
--------------------------------------------------------------------------------------------------
Estonia Jerzees logo 25 09/13/1990 09639
--------------------------------------------------------------------------------------------------
Estonia R Russell Athletic 25 09/13/1990 09640
--------------------------------------------------------------------------------------------------
Ethiopia Jerzees logo 25 04/01/1996 01979
--------------------------------------------------------------------------------------------------
Finland Cross Creek 25 12/07/1992 123382
--------------------------------------------------------------------------------------------------
Finland Discus and design 25 03/07/1983 84463
--------------------------------------------------------------------------------------------------
Finland Discus Athletic and design 25 04/20/1994 131675
--------------------------------------------------------------------------------------------------
Finland Jerzees logo 25 11/06/1989 105605
--------------------------------------------------------------------------------------------------
Finland R Russell logo 25 09/05/1984 90061
--------------------------------------------------------------------------------------------------
Finland Russell Athletic 25 12/20/1993 129618
--------------------------------------------------------------------------------------------------
France Discus 25 10/10/1989 1554384
--------------------------------------------------------------------------------------------------
France Discus Athletic and design 25 01/21/1992 92402029
--------------------------------------------------------------------------------------------------
France JE Jerzees American Active 25 07/31/1992 92429137
Wear & design
--------------------------------------------------------------------------------------------------
France Jerzees logo 25 08/21/1987 1433213
--------------------------------------------------------------------------------------------------
France R Russell logo 25 09/15/1982 1212951
--------------------------------------------------------------------------------------------------
France Russell Athletic 18 09/11/1992 92433581
--------------------------------------------------------------------------------------------------
France Russell Athletic 25 01/19/1996 95583601
--------------------------------------------------------------------------------------------------
Georgia Cross Creek 25 10/28/1997 7321
--------------------------------------------------------------------------------------------------
Georgia Jerzees logo 25 10/28/1997 7320
--------------------------------------------------------------------------------------------------
Georgia R Russell Athletic 25 09/05/1997 6660
--------------------------------------------------------------------------------------------------
Germany Discus Athletic and design 25 01/14/1991 1170803
--------------------------------------------------------------------------------------------------
Germany R logo 18 09/01/1992 W2050360
--------------------------------------------------------------------------------------------------
Germany R Russell Athletic 25 10/04/1990 2003825
--------------------------------------------------------------------------------------------------
Germany Russell Athletic 18 09/01/1992 2043777
--------------------------------------------------------------------------------------------------
Germany, West Jerzees logo 25 10/20/1987 1122839
--------------------------------------------------------------------------------------------------
Germany, West R Russell logo 25 09/15/1982 1048192
--------------------------------------------------------------------------------------------------
52
JURISDICTION MARKS CLASS REG DATE REG NO.
--------------------------------------------------------------------------------------------------
Ghana Jerzees logo 25 11/16/1998 25887
--------------------------------------------------------------------------------------------------
Greece Discus Athletic and design 25 05/12/1992 109015
--------------------------------------------------------------------------------------------------
Greece Jerzees logo 25 09/10/1987 86682
--------------------------------------------------------------------------------------------------
Greece R logo 18 09/08/1992 110.604
--------------------------------------------------------------------------------------------------
Greece R Russell Athletic 25 11/05/1991 106558
--------------------------------------------------------------------------------------------------
Greece R Russell logo 25 11/08/1982 73286-GRE
--------------------------------------------------------------------------------------------------
Greece Russell Athletic 18 09/08/1992 110.605
--------------------------------------------------------------------------------------------------
Guatemala Jerzees 25 02/09/1998 88538
--------------------------------------------------------------------------------------------------
Honduras Jerzees 25 02/28/1997 67672
--------------------------------------------------------------------------------------------------
Honduras R Russell Athletic 18 02/14/1997 67463
--------------------------------------------------------------------------------------------------
Honduras R Russell Athletic 25 06/11/1997 68942
--------------------------------------------------------------------------------------------------
Hong Kong Discus Athletic and design 25 08/10/1998 B8041/1998
--------------------------------------------------------------------------------------------------
Hong Kong Jerzees logo 25 08/16/1990 977/1994
--------------------------------------------------------------------------------------------------
Hong Kong R Russell logo 25 04/22/1983 B1360
--------------------------------------------------------------------------------------------------
Hong Kong Russell Athletic 42 01/16/1997 05615/98
--------------------------------------------------------------------------------------------------
Hong Kong Russell Athletic 25 09/05/1994 B04641
--------------------------------------------------------------------------------------------------
Hungary Cross Creek 25 03/11/1991 H133170
--------------------------------------------------------------------------------------------------
Hungary Discus Athletic and design 25 01/29/1992 135200
--------------------------------------------------------------------------------------------------
Hungary Jerzees logo 25 08/24/1990 140062
--------------------------------------------------------------------------------------------------
Hungary R Russell Athletic 25 08/24/1990 140063
--------------------------------------------------------------------------------------------------
Iceland R Russell logo 25 04/20/1983 651983
--------------------------------------------------------------------------------------------------
India Jerzees logo 25 03/13/2001 536823
--------------------------------------------------------------------------------------------------
India R Russell Athletic 25 02/15/2000 223753
--------------------------------------------------------------------------------------------------
Indonesia Jerzees logo 25 09/30/1996 325562
--------------------------------------------------------------------------------------------------
Indonesia R logo 25 01/04/1995 322774
--------------------------------------------------------------------------------------------------
Indonesia R Russell Athletic 18 05/03/1995 332980
--------------------------------------------------------------------------------------------------
Indonesia Russell Athletic 35 03/26/1999 425321
--------------------------------------------------------------------------------------------------
Indonesia Russell Athletic 25 05/23/1995 335309
--------------------------------------------------------------------------------------------------
Ireland Discus and design 25 03/22/1979 99339
--------------------------------------------------------------------------------------------------
Israel Discus Athletic and design 25 04/06/1995 86835
--------------------------------------------------------------------------------------------------
Israel Jerzees logo 25 10/19/1994 95058
--------------------------------------------------------------------------------------------------
Israel R Russell Athletic 25 08/05/1996 95057
--------------------------------------------------------------------------------------------------
Italy Discus and design 25 09/17/1985 368484
--------------------------------------------------------------------------------------------------
Italy Discus Athletic and design 25 12/21/1994 638591
--------------------------------------------------------------------------------------------------
Italy Discus Athletic and design 25, 28 04/02/1992 565109
--------------------------------------------------------------------------------------------------
53
JURISDICTION MARKS CLASS REG DATE REG NO.
--------------------------------------------------------------------------------------------------
Italy Jerzees logo 25 08/28/1987 508122
--------------------------------------------------------------------------------------------------
Italy R logo 18 09/04/1992 00653571
--------------------------------------------------------------------------------------------------
Italy R Russell logo 25 09/16/1982 408678
--------------------------------------------------------------------------------------------------
Italy Russell Athletic 25 07/29/1992 00649111
--------------------------------------------------------------------------------------------------
Italy Russell Athletic 18 09/04/1992 00649791
--------------------------------------------------------------------------------------------------
Japan Cross Creek 25 10/31/1996 3206367
--------------------------------------------------------------------------------------------------
Japan design of a discus thrower 24 09/30/1992 2462049
(local)
--------------------------------------------------------------------------------------------------
Japan design of a discus thrower 17 (local) 12/24/1986 1921742
--------------------------------------------------------------------------------------------------
Japan Discus 24 (local) 08/31/1993 2567150
--------------------------------------------------------------------------------------------------
Japan Discus Athletic 17 (local) 04/23/1990 2222133
--------------------------------------------------------------------------------------------------
Japan Discus Classic Athletic 25 10/27/2000 4427005
--------------------------------------------------------------------------------------------------
Japan Jerzees 18 02/20/1998 4117389
--------------------------------------------------------------------------------------------------
Japan Jerzees 25 09/05/1997 4054287
--------------------------------------------------------------------------------------------------
Japan R logo 24 10/27/1983 1627110
--------------------------------------------------------------------------------------------------
Japan R logo 17 02/23/1984 1657431
--------------------------------------------------------------------------------------------------
Japan R Russell Athletic 18 03/12/1997 3272365
--------------------------------------------------------------------------------------------------
Japan R Russell Athletic 25 07/31/1996 3179438
--------------------------------------------------------------------------------------------------
Japan R Russell Athletic 24 07/31/1996 3179437
--------------------------------------------------------------------------------------------------
Japan R Russell Athletic 25 06/20/1997 4016355
--------------------------------------------------------------------------------------------------
Japan Russell 17 04/27/1983 1580649
--------------------------------------------------------------------------------------------------
Jordan Jerzees logo 25 12/31/1990 26796
--------------------------------------------------------------------------------------------------
Jordan R Russell Athletic 25 12/31/1990 26798
--------------------------------------------------------------------------------------------------
Kazakhstan Cross Creek 25 07/26/1993 2941
--------------------------------------------------------------------------------------------------
Kazakhstan Jerzees logo 25 07/26/1993 2940
--------------------------------------------------------------------------------------------------
Kazakhstan R Russell Athletic 25 07/26/1993 2942
--------------------------------------------------------------------------------------------------
Kenya Jerzees logo 25 (Part A) 10/27/1993 40856
--------------------------------------------------------------------------------------------------
Korea design of a discus thrower 45 (local) 11/10/1993 279084
--------------------------------------------------------------------------------------------------
Korea Discus Athletic and design 45 (local) 07/21/1993 269644
--------------------------------------------------------------------------------------------------
Korea Jerzees logo 45 11/25/1991 226609
--------------------------------------------------------------------------------------------------
Korea Jerzees logo 27 11/01/1991 225251
--------------------------------------------------------------------------------------------------
Korea R Russell Athletic 45 05/25/1992 238969
--------------------------------------------------------------------------------------------------
Korea R Russell Athletic 27 11/01/1991 225252
--------------------------------------------------------------------------------------------------
Korea Russell 18 10/02/1998 424153
--------------------------------------------------------------------------------------------------
Kuwait Jerzees 25 11/05/1996 28054
--------------------------------------------------------------------------------------------------
Kuwait R Russell Athletic 25 11/09/1999 30836
--------------------------------------------------------------------------------------------------
Latvia Cross Creek 25 06/28/1993 M17563
--------------------------------------------------------------------------------------------------
54
------------------------------------------------------------------------------------------------------------
JURISDICTION MARKS CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Latvia Jerzees logo 25 06/28/1993 M17312
------------------------------------------------------------------------------------------------------------
Latvia R Russell Athletic 25 06/28/1993 M17313
------------------------------------------------------------------------------------------------------------
Lebanon Jerzees logo 25 02/11/1991 55138
------------------------------------------------------------------------------------------------------------
Lebanon R Russell Athletic 25 02/11/1991 55139
------------------------------------------------------------------------------------------------------------
Lithuania Cross Creek 25 07/08/1993 11125
------------------------------------------------------------------------------------------------------------
Lithuania Jerzees logo 25 07/08/1993 11124
------------------------------------------------------------------------------------------------------------
Lithuania R Russell Athletic 25 07/08/1993 11123
------------------------------------------------------------------------------------------------------------
Macau Russella and design 25 02/07/2001 N/007398
------------------------------------------------------------------------------------------------------------
Malaysia Discus Athletic 25 03/15/1993 93/01609
------------------------------------------------------------------------------------------------------------
Malaysia Discus Athletic and 25 03/15/1993 93001608
design
------------------------------------------------------------------------------------------------------------
Malaysia R Russell logo 25 03/23/1983 MB99192
------------------------------------------------------------------------------------------------------------
Mauritania Jerzees logo 18, 24 & 25 05/22/1995 034008
(See O.A.P.I.)
------------------------------------------------------------------------------------------------------------
Mexico Cross Creek 25 11/12/1990 436977
------------------------------------------------------------------------------------------------------------
Mexico Discus Athletic and 25 09/24/1996 531701
design
------------------------------------------------------------------------------------------------------------
Mexico Discus Classic Athletic 25 05/06/1998 575403
------------------------------------------------------------------------------------------------------------
Mexico Jerzees logo 25 07/26/1993 438193
------------------------------------------------------------------------------------------------------------
Mexico Jerzees World Class and 25 04/14/1994 457107
design
------------------------------------------------------------------------------------------------------------
Mexico R logo 25 03/29/1993 438194
------------------------------------------------------------------------------------------------------------
Mexico R logo 18 10/11/1993 443918
------------------------------------------------------------------------------------------------------------
Mexico R Russell Athletic 5, 9, 10, 16, 09/29/1989 380360
18, 21, 25
------------------------------------------------------------------------------------------------------------
Mexico Russell Athletic 25 06/15/1993 435756
------------------------------------------------------------------------------------------------------------
Mexico Russell Athletic 18 02/13/1995 483995
------------------------------------------------------------------------------------------------------------
Moldova Cross Creek 25 03/21/1994 547
------------------------------------------------------------------------------------------------------------
Moldova Jerzees logo 25 03/21/1994 504
------------------------------------------------------------------------------------------------------------
Moldova R Russell Athletic 25 03/25/1994 505
------------------------------------------------------------------------------------------------------------
Morocco Jerzees logo 25 10/24/1994 55079
------------------------------------------------------------------------------------------------------------
New Zealand Discus and design 25 03/22/1979 127410
------------------------------------------------------------------------------------------------------------
New Zealand Discus Athletic and 25 03/13/1992 216852
design
------------------------------------------------------------------------------------------------------------
New Zealand Jerzees logo 25 08/13/1990 204029
------------------------------------------------------------------------------------------------------------
New Zealand R Russell logo 25 05/21/1985 B158631
------------------------------------------------------------------------------------------------------------
New Zealand Russell Athletic 25 08/04/1994 239620
------------------------------------------------------------------------------------------------------------
Nicaragua Jerzees 25 06/30/1998 37804
------------------------------------------------------------------------------------------------------------
Nicaragua R Russell Athletic 18 01/11/2002 52239
------------------------------------------------------------------------------------------------------------
Nicaragua R Russell Athletic 25 01/11/2002 52241
------------------------------------------------------------------------------------------------------------
Nigeria Jerzees logo 25 10/26/1993 58011
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
JURISDICTION MARKS CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Norway Cross Creek 25 12/30/1992 154242
------------------------------------------------------------------------------------------------------------
Norway Discus Athletic 25 02/25/1993 155322
------------------------------------------------------------------------------------------------------------
Norway Discus Athletic and 25 07/15/1993 157.888
design
------------------------------------------------------------------------------------------------------------
Norway Jerzees by Russell logo 25 10/01/1987 130169
------------------------------------------------------------------------------------------------------------
Norway R logo 18 10/28/1993 159,811
------------------------------------------------------------------------------------------------------------
Norway R Russell logo 25 06/28/1984 117469
------------------------------------------------------------------------------------------------------------
Norway Russell Athletic 18 12/02/1993 160445
------------------------------------------------------------------------------------------------------------
O.A.P.I. Jerzees logo 18, 24 & 25 05/22/1995 034008
African Union
(Benin, Burkina-
Faso, Cameron,
Central African
Republic, Chad,
Congo, Gabon,
Guina (Conakry),
Ivory Coast,
Mali, Mauritania,
Niger, Senegal,
Togo)
------------------------------------------------------------------------------------------------------------
Oman Jerzees logo 25 02/13/1999 5091
------------------------------------------------------------------------------------------------------------
Oman R Russell Athletic 25 02/13/1999 5090
------------------------------------------------------------------------------------------------------------
Pakistan Jerzees logo 25 08/29/1994 126365
------------------------------------------------------------------------------------------------------------
Pakistan R Russell Athletic 25 08/29/1994 126364
------------------------------------------------------------------------------------------------------------
Panama Jerzees logo 25 02/17/1994 61015
------------------------------------------------------------------------------------------------------------
Panama R Russell Athletic 25 10/07/1992 56315
------------------------------------------------------------------------------------------------------------
Panama R Russell Athletic (old 25 01/08/1991 52605
style)
------------------------------------------------------------------------------------------------------------
Paraguay Cross Creek 25 10/29/1991 150481
------------------------------------------------------------------------------------------------------------
Paraguay Jerzees 42 06/09/1992 154228
------------------------------------------------------------------------------------------------------------
Paraguay Jerzees logo 25 09/23/1991 149705
------------------------------------------------------------------------------------------------------------
Paraguay R logo 25 03/21/1994 167508
------------------------------------------------------------------------------------------------------------
Paraguay R Russell Athletic 42 06/09/1992 154229
------------------------------------------------------------------------------------------------------------
Peru Cross Creek 25 02/28/1996 023591
------------------------------------------------------------------------------------------------------------
Peru Jerzees 42 05/14/1992 09779
------------------------------------------------------------------------------------------------------------
Peru Jerzees logo 25 07/09/1991 92088
------------------------------------------------------------------------------------------------------------
Peru R Russell Athletic 25 06/28/1995 0018905
------------------------------------------------------------------------------------------------------------
Peru R Russell Athletic 42 05/14/1992 0009780
------------------------------------------------------------------------------------------------------------
Philippines Jerzees logo 25 05/28/1993 55275
------------------------------------------------------------------------------------------------------------
Philippines R Russell Athletic 25 07/23/2001 4-1995-
101119
------------------------------------------------------------------------------------------------------------
Poland Cross Creek 25 03/25/1991 72636
------------------------------------------------------------------------------------------------------------
Poland Discus Athletic and 25 11/22/1993 R80405
design
------------------------------------------------------------------------------------------------------------
Poland Jerzees logo 25 09/12/1990 69744
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
JURISDICTION MARKS CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Poland R Russell Athletic 18 06/30/1999 107310
------------------------------------------------------------------------------------------------------------
Poland R Russell Athletic 25 09/12/1990 69745
------------------------------------------------------------------------------------------------------------
Portugal Discus Athletic and 25 11/22/1993 208999
design
------------------------------------------------------------------------------------------------------------
Portugal Heavy Sweats 25 12/28/1992 267736
------------------------------------------------------------------------------------------------------------
Portugal Jerzees By Russell logo 25 05/31/1991 235073
------------------------------------------------------------------------------------------------------------
Portugal Jerzees logo 25 05/28/1991 242810
------------------------------------------------------------------------------------------------------------
Portugal R logo 25 09/30/1992 264729
------------------------------------------------------------------------------------------------------------
Portugal R logo 18 06/08/1994 285.958
------------------------------------------------------------------------------------------------------------
Portugal R Russell Logo 25 09/30/1992 264728
------------------------------------------------------------------------------------------------------------
Portugal Russell Athletic 18 06/03/1994 285.959
------------------------------------------------------------------------------------------------------------
Qatar Jerzees logo 25 09/01/1997 8282
------------------------------------------------------------------------------------------------------------
Qatar R Russell Athletic 25 04/15/1997 8281
------------------------------------------------------------------------------------------------------------
Ras-al- Jerzees logo 25 04/23/1992 7991
Khaimah
------------------------------------------------------------------------------------------------------------
Ras-al-Khaimah R Russell Athletic 25 04/23/1992 7992
------------------------------------------------------------------------------------------------------------
Romania 25 01/08/1991 17627
Jerzees logo
------------------------------------------------------------------------------------------------------------
Romania Discus Athletic and 25 03/13/1992 21604
design
------------------------------------------------------------------------------------------------------------
Romania R Russell Athletic 25 01/08/1991 18175
------------------------------------------------------------------------------------------------------------
Russia Cross Creek 25 03/26/1991 99822
------------------------------------------------------------------------------------------------------------
Russia Discus Athletic 25 12/07/1993 112370
------------------------------------------------------------------------------------------------------------
Russia Jerzees logo 25 09/13/1990 96176
------------------------------------------------------------------------------------------------------------
Russia R Russell Athletic 25 09/13/1990 96175
------------------------------------------------------------------------------------------------------------
Russia Russell Athletic 25 07/26/1989 88210
------------------------------------------------------------------------------------------------------------
Saudi Arabia Discus Athletic 25 04/24/1994 305/67
------------------------------------------------------------------------------------------------------------
Saudi Arabia Jerzees logo 25 03/20/1991 24971
------------------------------------------------------------------------------------------------------------
Saudi Arabia R Russell Athletic 25 03/20/1991 24972
------------------------------------------------------------------------------------------------------------
Sierra Leone Jerzees logo 25 12/11/1995 14274
------------------------------------------------------------------------------------------------------------
Singapore Discus 25 03/09/1994 1959/94
------------------------------------------------------------------------------------------------------------
Singapore Discus Athletic and 25 03/10/1993 T93/01735C
design
------------------------------------------------------------------------------------------------------------
Singapore Jerzees logo (old style) 25 09/22/1990 B6596/90
------------------------------------------------------------------------------------------------------------
Singapore R Russell Logo 25 03/21/1983 B141183
------------------------------------------------------------------------------------------------------------
Singapore Russell Athletic 25 08/29/1994 T94/07486E
------------------------------------------------------------------------------------------------------------
Slovak Discus Athletic and 25 04/24/1995 174214
Republic design
------------------------------------------------------------------------------------------------------------
Slovak R Russell Athletic 25 08/09/1990 168811
Republic
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
JURISDICTION MARKS CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Slovakia Jerzees logo 25 08/09/1990 168812
------------------------------------------------------------------------------------------------------------
Slovenia Cross Creek 25 02/25/1991 Z9180395
------------------------------------------------------------------------------------------------------------
Slovenia Jerzees logo 25 08/13/1990 Z9081426
------------------------------------------------------------------------------------------------------------
Slovenia R Russell Athletic 25 08/13/1990 Z9081425
------------------------------------------------------------------------------------------------------------
South Africa Discus Athletic and 25 01/30/1992 92/0733
design
------------------------------------------------------------------------------------------------------------
South Africa Jerzees logo 25 09/15/1994 94/9992
------------------------------------------------------------------------------------------------------------
South Africa R logo 25 09/15/1994 94/09991
------------------------------------------------------------------------------------------------------------
South Africa Russell Athletic 25 09/15/1994 94/9990
------------------------------------------------------------------------------------------------------------
Spain Discus Athletic and 25 07/16/1995 1689167
design
------------------------------------------------------------------------------------------------------------
Spain Jerzees by Russell logo 25 10/20/1987 1163982
------------------------------------------------------------------------------------------------------------
Spain Jerzees logo 25 02/20/1989 1226999
------------------------------------------------------------------------------------------------------------
Spain R logo 18 02/05/1996 1764609
------------------------------------------------------------------------------------------------------------
Spain R logo 25 02/05/1996 1764610
------------------------------------------------------------------------------------------------------------
Spain R logo 28 02/05/1996 1765611
------------------------------------------------------------------------------------------------------------
Spain R logo 39 02/05/1996 1764612
------------------------------------------------------------------------------------------------------------
Spain R logo 18 10/16/1992 1725271
------------------------------------------------------------------------------------------------------------
Spain R Russell Athletic 39 10/20/1998 1686189
Espanola SL
------------------------------------------------------------------------------------------------------------
Spain Russell Athletic 25 04/18/1995 1960404
------------------------------------------------------------------------------------------------------------
Sri Lanka Jerzees logo 25 71817
------------------------------------------------------------------------------------------------------------
Sweden Discus Athletic and 25 02/12/1993 246508
design
------------------------------------------------------------------------------------------------------------
Sweden Jerzees Built To Last 25 04/29/1994 257591
logo
------------------------------------------------------------------------------------------------------------
Sweden Jerzees By Russell 25 04/29/1994 257586
logo
------------------------------------------------------------------------------------------------------------
Sweden Jerzees Heavy Sweats 25 10/08/1993 252288
logo
------------------------------------------------------------------------------------------------------------
Sweden Jerzees logo 25 04/13/1995 300693
------------------------------------------------------------------------------------------------------------
Sweden R logo 18 02/19/1993 246893
------------------------------------------------------------------------------------------------------------
Sweden R logo 25 04/26/1985 195934
------------------------------------------------------------------------------------------------------------
Sweden Russell Athletic 25 03/12/1993 253716
------------------------------------------------------------------------------------------------------------
Sweden Russell Athletic 18 08/27/1993 251190
------------------------------------------------------------------------------------------------------------
Switzerland Discus Athletic and 25 07/06/1992 400881
design
------------------------------------------------------------------------------------------------------------
Switzerland Jerzees 25 02/07/2000 469162
------------------------------------------------------------------------------------------------------------
Switzerland Jerzees Built to Last logo 25 05/31/1988 363636
------------------------------------------------------------------------------------------------------------
Switzerland Jerzees by Russell logo 25 10/08/1986 350088
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
JURISDICTION MARKS CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Switzerland Jerzees Heavy Sweats 25 09/17/1990 384.622
logo
------------------------------------------------------------------------------------------------------------
Switzerland R logo 18 09/01/1992 402465
------------------------------------------------------------------------------------------------------------
Switzerland R Russell logo 25 10/08/1986 350089
------------------------------------------------------------------------------------------------------------
Switzerland Russell Athletic 18 09/01/1992 402501
------------------------------------------------------------------------------------------------------------
Taiwan Cross Creek 28 01/01/2001 923755
------------------------------------------------------------------------------------------------------------
Taiwan Cross Creek 40 09/16/1994 651795
------------------------------------------------------------------------------------------------------------
Taiwan Cross Creek 41 06/16/1991 526066
------------------------------------------------------------------------------------------------------------
Taiwan Cross Creek 28 01/01/2001 923755
------------------------------------------------------------------------------------------------------------
Taiwan Discus 40 (local) 03/01/1995 672243
------------------------------------------------------------------------------------------------------------
Taiwan Discus Athletic and 40 (local) 04/01/1994 638601
design
------------------------------------------------------------------------------------------------------------
Taiwan Jerzees logo 40 07/01/1991 527281
------------------------------------------------------------------------------------------------------------
Taiwan Jerzees logo 41 06/16/1991 526065
------------------------------------------------------------------------------------------------------------
Taiwan R logo 28 10/01/1998 820115
------------------------------------------------------------------------------------------------------------
Taiwan R logo 18 01/16/1999 835881
------------------------------------------------------------------------------------------------------------
Taiwan R Russell Athletic 28 05/16/1999 852503
------------------------------------------------------------------------------------------------------------
Taiwan R Russell Athletic 18 01/16/1999 835904
------------------------------------------------------------------------------------------------------------
Taiwan R Russell Athletic 25 12/01/1999 877099
------------------------------------------------------------------------------------------------------------
Tanzania Jerzees logo 25 11/11/1993 22688
------------------------------------------------------------------------------------------------------------
Thailand Discus Athletic and 28 10/18/1994 20160
design
------------------------------------------------------------------------------------------------------------
Thailand Discus Athletic and 25 01/15/1997 54186
design
------------------------------------------------------------------------------------------------------------
Thailand Jerzees logo 25 09/18/1990 148677
------------------------------------------------------------------------------------------------------------
Thailand Russell 25 03/30/1983 Kor2518
------------------------------------------------------------------------------------------------------------
Tunisia Jerzees logo 25 10/10/1994 EE94.1122
------------------------------------------------------------------------------------------------------------
Turkey Jerzees logo 25 10/23/1991 132493
------------------------------------------------------------------------------------------------------------
Turkey R Russell Athletic 25 10/23/1991 132623
------------------------------------------------------------------------------------------------------------
Turkmenistan Cross Creek 25 08/06/1998 3444
------------------------------------------------------------------------------------------------------------
Turkmenistan Jerzees logo 25 08/06/1998 3445
------------------------------------------------------------------------------------------------------------
Turkmenistan R Russell Athletic 25 08/06/1998 3446
------------------------------------------------------------------------------------------------------------
Ukraine Cross Creek 25 03/26/1991 3150
------------------------------------------------------------------------------------------------------------
Ukraine Jerzees logo 25 09/13/1990 3149
------------------------------------------------------------------------------------------------------------
Ukraine R Russell Athletic 25 09/13/1990 3148
------------------------------------------------------------------------------------------------------------
United Arab Cross Creek 25 06/21/1994 202
Emirates
------------------------------------------------------------------------------------------------------------
United Arab Discus Athletic 25 04/23/1992 80289
Emirates
------------------------------------------------------------------------------------------------------------
United Arab Jerzees logo 25 05/31/1994 196
Emirates
------------------------------------------------------------------------------------------------------------
United Arab R Russell Athletic 25 05/31/1994 197
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
JURISDICTION MARKS CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Emirates
------------------------------------------------------------------------------------------------------------
United Discus 25 05/10/1979 B1114066
Kingdom
------------------------------------------------------------------------------------------------------------
United Discus Athletic 25 01/21/1992 1488562
Kingdom
------------------------------------------------------------------------------------------------------------
United DISCUS ATHLETIC and Design 25 05/11/1994 1571741
Kingdom
------------------------------------------------------------------------------------------------------------
United JE Jerzees American 25 05/29/1992 B1,501,700
Kingdom Active Wear logo
------------------------------------------------------------------------------------------------------------
United Jerzees Built to Last logo 25 Schedule 4 05/19/1988 B1345016
Kingdom
------------------------------------------------------------------------------------------------------------
United Jerzees logo 25 06/03/1993 A1537597
Kingdom
------------------------------------------------------------------------------------------------------------
United Jerzees logo (old style) 25 Schedule 4 05/09/1986 B1266725
Kingdom
------------------------------------------------------------------------------------------------------------
United R logo 18 09/01/1992 B1511239
Kingdom
------------------------------------------------------------------------------------------------------------
United R Russell logo 25 09/02/1982 B1181100
Kingdom
------------------------------------------------------------------------------------------------------------
United Russell Athletic 25 02/28/1994 1563730
Kingdom
------------------------------------------------------------------------------------------------------------
United Russell Athletic 18, 25 10/11/1996 1571350
Kingdom
------------------------------------------------------------------------------------------------------------
Uruguay Discus Athletic and 25 05/24/1994 252110
design
------------------------------------------------------------------------------------------------------------
Uruguay Jerzees 42 04/24/1992 249601
------------------------------------------------------------------------------------------------------------
Uruguay Jerzees logo 25 11/20/1991 242876
------------------------------------------------------------------------------------------------------------
Uruguay R logo 25 05/13/1998 285563
------------------------------------------------------------------------------------------------------------
Uruguay R Russell Athletic 25 10/29/1997 285562
------------------------------------------------------------------------------------------------------------
Uruguay R Russell Athletic 42 04/24/1992 249602
------------------------------------------------------------------------------------------------------------
Uzbekistan Cross Creek 25 03/26/1991 808
------------------------------------------------------------------------------------------------------------
Uzbekistan Jerzees logo 25 09/13/1990 807
------------------------------------------------------------------------------------------------------------
Uzbekistan R Russell Athletic 25 09/13/1990 809
------------------------------------------------------------------------------------------------------------
Venezuela Cross Creek 25 9/10/1999 Not yet
assigned
------------------------------------------------------------------------------------------------------------
Venezuela Discus Athletic 25 01/05/1996 unknown
------------------------------------------------------------------------------------------------------------
Venezuela Jerzees logo 25 11/01/1994 172242
------------------------------------------------------------------------------------------------------------
Venezuela R Russell logo 39 06/12/1985 116443F
------------------------------------------------------------------------------------------------------------
Venezuela R Russell Athletic 25 10/31/1997 P200832
------------------------------------------------------------------------------------------------------------
Venezuela R Russell Athletic 43 10/31/1997 N037117
------------------------------------------------------------------------------------------------------------
Vietnam Jerzees logo 25 07/29/1994 12769
------------------------------------------------------------------------------------------------------------
Vietnam R Russell Athletic 25 07/29/1994 12770
------------------------------------------------------------------------------------------------------------
Yugoslavia Cross Creek 25 02/25/1991 37557
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
JURISDICTION MARKS CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Yugoslavia Discus Athletic and 25 11/24/1995 39192
design
------------------------------------------------------------------------------------------------------------
Yugoslavia Jerzees logo 25 08/13/1990 36988
------------------------------------------------------------------------------------------------------------
Yugoslavia R Russell Athletic 25 08/13/1990 36565
------------------------------------------------------------------------------------------------------------
Zimbabwe Jerzees logo 25 09/23/1994 1427/94
------------------------------------------------------------------------------------------------------------
DeSoto Mills, Inc.
Trademark Registrations
------------------------------------------------------------------------------------------------------------
JURISDICTION MARK CLASS REG. DATE REG. NO.
------------------------------------------------------------------------------------------------------------
Canada Desoto Player's Club and design 25 01/12/1996 452,846
------------------------------------------------------------------------------------------------------------
Canada The Golfer and design 25 12/02/1996 466,897
------------------------------------------------------------------------------------------------------------
Canada Performance Club 25 08/21/1997 TMA481069
------------------------------------------------------------------------------------------------------------
Canada Desoto Outdoors and design 25 08/13/1997 TMA480416
------------------------------------------------------------------------------------------------------------
Canada Player's Performance 25 10/27/1995 449,405
------------------------------------------------------------------------------------------------------------
Canada The Worker and design 25 07/28/1995 445,699
------------------------------------------------------------------------------------------------------------
Canada Athletic Club 25 04/28/1995 442287
------------------------------------------------------------------------------------------------------------
Japan Desoto Player's Club and design 25 07/31/1996 3183278
------------------------------------------------------------------------------------------------------------
Mexico Player's Performance and design 25 10/05/1994 586895
------------------------------------------------------------------------------------------------------------
Mexico DeSoto Player's Club and design 25 08/22/1994 649935
------------------------------------------------------------------------------------------------------------
Mexico Player's Performance 25 08/31/1998 476120
------------------------------------------------------------------------------------------------------------
Russell Corporation
Trademark Applications
----------------------------------------------------------------------------------------------------------------------------
JURISDICTION MARK CLASS APP FILED APP NO.
----------------------------------------------------------------------------------------------------------------------------
Brazil Discus Athletic 18 04/26/2001 823210740
----------------------------------------------------------------------------------------------------------------------------
CTM~~EU or EC countries Russell Athletic 18, 25, 28, 01/22/1997 000451856
are:~Austria, Belgium, Denmark, 35
Finland, France, Germany,
Greece, Ireland, Italy,
Luxembourg, Netherlands,
Portugal, Spain, Sweden, and UK
----------------------------------------------------------------------------------------------------------------------------
El Salvador R Russell Athletic 18 08/13/1996 1196-3430
----------------------------------------------------------------------------------------------------------------------------
Guatemala R Russell Athletic 25 05/29/1996 3946/96
----------------------------------------------------------------------------------------------------------------------------
Guatemala R Russell Athletic 18 05/29/1996 3947/96
----------------------------------------------------------------------------------------------------------------------------
Guatemala Russell Athletic 18 00/00/2002 1504-2002
----------------------------------------------------------------------------------------------------------------------------
Guatemala Russell Athletic 25 00/00/2002 1505-2002
----------------------------------------------------------------------------------------------------------------------------
Guatemala R logo 18 00/00/2002 1507-2002
----------------------------------------------------------------------------------------------------------------------------
Guatemala R logo 25 00/00/2002 1506-2002
----------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
JURISDICTION MARK CLASS APP FILED APP NO.
------------------------------------------------------------------------------------------------------------------------
India Discus 25 03/09/1994 621670
------------------------------------------------------------------------------------------------------------------------
India Discus Athletic and design 25 02/25/1993 591523
------------------------------------------------------------------------------------------------------------------------
Japan DISCUS 18, 25 04/23/2001 2001-37333
------------------------------------------------------------------------------------------------------------------------
Japan Russell Athletic Dri Power 25 11/09/2001 2001-100622
------------------------------------------------------------------------------------------------------------------------
Malaysia Jerzees logo 25 09/05/1994 94/08203
------------------------------------------------------------------------------------------------------------------------
Malaysia Russell Athletic (block 25 09/05/1994 9408204
letters)
------------------------------------------------------------------------------------------------------------------------
Panama Lady Player 3 Pair and 11/26/2001 118332
design
------------------------------------------------------------------------------------------------------------------------
Panama DeSoto Player's Club and 11/26/2001 118331
design
------------------------------------------------------------------------------------------------------------------------
Panama Lady Player & design 11/26/2001 118330
------------------------------------------------------------------------------------------------------------------------
Panama Player's Performance and 11/26/2001 118323
design
------------------------------------------------------------------------------------------------------------------------
Paraguay R Russell Athletic 25 05/10/1991 05739
------------------------------------------------------------------------------------------------------------------------
Portugal Russell Athletic 25 02/13/1995 307265
------------------------------------------------------------------------------------------------------------------------
South Africa Russell Athletic 35 12/12/1997 97/19376
------------------------------------------------------------------------------------------------------------------------
Spain R logo Calzados Russell 25 01/08/1992 M1.677.112
------------------------------------------------------------------------------------------------------------------------
Spain Russell Athletic 18 10/16/1992 1725272
------------------------------------------------------------------------------------------------------------------------
Sri Lanka R Russell Athletic 25 09/14/1994 71815
------------------------------------------------------------------------------------------------------------------------
Uruguay Cross Creek 25 03/18/1991 242875
------------------------------------------------------------------------------------------------------------------------
Venezuela R Russell Athletic 43 02/21/1996 96-002083
(tradename)
------------------------------------------------------------------------------------------------------------------------
Copyrights
------------------------------------------------------------------------------------------------------------
DESCRIPTION OWNER REGISTRATION NO. ISSUE DATE
------------------------------------------------------------------------------------------------------------
Russell Athletic Team Specialist Russell Corporation TX-152-984 (USA) 12/5/1978
Catalog/1979
------------------------------------------------------------------------------------------------------------
The Little T Shirt that Made Good Russell Corporation TX-1-417-069 (USA) 8/28/1984
------------------------------------------------------------------------------------------------------------
Cross Creek Bogey Man Cross Creek Apparel, VA-639-939 (USA) 5/31/1994
(embroidery design on shirt) Inc.
------------------------------------------------------------------------------------------------------------
Russell Athletic R Logo Russell Corporation 200-F-0154 (China) 9/25/2000
------------------------------------------------------------------------------------------------------------
RUSSELL CORPORATION
PATENTS
U.S. PATENTS:
------------------------------------------------------------------------------------------------------------
DESCRIPTION REGISTRATION NO. ISSUE DATE
------------------------------------------------------------------------------------------------------------
Dye Machine Festooner 6,305,592 October 23, 2001
------------------------------------------------------------------------------------------------------------
Method for Inspecting, Detecting 4,864,150 September 5, 1989
and Distinguishing Sides of
Fabrics
------------------------------------------------------------------------------------------------------------
Method and Apparatus for Sensing 4,799,613 January 24, 1989
the Preferred Side of Garment
Portions
------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 4,693,613 September 15, 1987
Loader
------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 4,633,604 January 6, 1987
Loader
------------------------------------------------------------------------------------------------------------
INTERNATIONAL PATENTS:
------------------------------------------------------------------------------------------------------------
DESCRIPTION REGISTRATION NO. COUNTRY OF ISSUE DATE
REGISTRATION
------------------------------------------------------------------------------------------------------------
Method and Apparatus 1322130 Canada September 14, 1993
for Sensing the Preferred
Side of Garment Portions
------------------------------------------------------------------------------------------------------------
Method and Apparatus 88312072.7 Sweden December 20, 1988
for Sensing the Preferred
Side of Garment Portions
------------------------------------------------------------------------------------------------------------
Method and Apparatus 88312072.7 Spain December 20, 1988
for Sensing the Preferred
Side of Garment Portions
------------------------------------------------------------------------------------------------------------
Method and Apparatus 374314 England December 20, 1988
for Sensing the Preferred
Side of Garment Portions
------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
DESCRIPTION REGISTRATION NO. COUNTRY OF ISSUE DATE
REGISTRATION
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 374314 Austria December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 374314 Luxembourg December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 374314 Netherlands December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 374314 Italy December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 374314 Switzerland December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 374314 France December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 374314 Belgium December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 2745139 Japan January 10, 1989
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 3008040 Greece December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for P3879950.2 Germany December 20, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 606246 Australia December 23, 1988
Sensing the Preferred Side of
Garment Portions
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 2623088 Japan April 11, 1997
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 8639017.1 Spain November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 8639017.1 Sweden November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 Switzerland November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 England November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 Italy November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 Luxembourg November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 Netherlands November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 Austria November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 Belgium November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 225751 France November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 3001694 Greece November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion P3677348.4 Germany November 18, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 586521 Australia November 28, 1986
Loader
--------------------------------------------------------------------------------------------------------------------
Automatic Garment Portion 1272227 Canada July 31, 1990
Loader
--------------------------------------------------------------------------------------------------------------------
Russell Corporation
Patent Applications
--------------------------------------------------------------------------------------------------------------------
OWNER DESCRIPTION DATE FILED APPLICATION NO.
--------------------------------------------------------------------------------------------------------------------
Russell Corporation Garment Portion Processing 7/20/2000 09/620,052
Assembly
--------------------------------------------------------------------------------------------------------------------
Russell Corporation Bale Processing Assembly 7/21/2000 09/620,795
--------------------------------------------------------------------------------------------------------------------
Russell Corporation Improved Dye Machine 2/9/2000 09/501,389
Festooner
--------------------------------------------------------------------------------------------------------------------
Russell Corporation Pebble Fabric 4/16/2001 09/835,902
--------------------------------------------------------------------------------------------------------------------
TRADEMARK LICENSES
[REVIEWING FOR UPDATES]
LICENSES WHERE A BORROWER IS LICENSOR:
AB COMPETITION AGREEMENT
BRILLIANCE ELEMENT LICENSE AGREEMENT
D'LIGHT NV AGREEMENT
ESSENCE GMBH AGREEMENT
HIDARY LICENSE AGREEMENT
KEN TRADE SRL AGREEMENT
MINT APPAREL LIMITED AGREEMENT
SIBNERHEGNER LIMITED LICENSE AGREEMENT
TWINS A/S AGREEMENT
UNIVERSAL-EXES OY AGREEMENT
FROS INTERNATIONAL B.V. AGREEMENT
RINTEL PROPERTIES, INC. AGREEMENT (Russell Asset Management, Inc. licenses to
RINTEL Properties, Inc.)
RINTEL PROPERTIES, INC. AGREEMENTS (RINTEL Properties, Inc. sublicenses to
Russell Corporation, DeSoto Mills, Inc. and Cross Creek Apparel, LLC)
LICENSES WHERE A BORROWER IS LICENSEE:
RINTEL PROPERTIES, INC. AGREEMENTS (RINTEL Properties, Inc. sublicenses to
Russell Corporation, DeSoto Mills, Inc. and Cross Creek Apparel, LLC)
AFL LICENSE AGREEMENT
BASS LICENSE & SPONSORSHIP AGREEMENT
CHARTER FABRICS LICENSE
CROSSBOW PRIVATE LABEL MERCHANDISE AGREEMENT
FAB-CON MACHINERY DEVELOPMENT CORP.
HAAS OUTDOORS, INC. MOSSY OAK LICENSE AGREEMENTS
MAJOR LEAGUE BASEBALL PROPERTIES, INC.
MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, INC.
MALDEN MILLS LICENSE AGREEMENT
MINOR LEAGUE BASEBALL ON-FIELD LICENSE AGREEMENT
TUBULAR TEXTILE, LLC
WOODWAY USA, INC. LICENSE AGREEMENT
AIR FORCE UNIVERSITY
AKRON, U/
ALABAMA A&M UNIVERSITY
ALABAMA, U/
ALABAMA - BIRMINGHAM, U/
ALABAMA - HUNTSVILLE, U/
ALABAMA STATE UNIVERSITY
ALASKA - FAIRBANKS, U/
AMERICAN UNIVERSITY
APPALACHIAN STATE
ARIZONA, U/
ARIZONA STATE UNIVERSITY
ARKANSAS, U/
ARKANSAS, U/ - PINE BLUFF
ARKANSAS STATE UNIVERSITY
ASHLAND UNIVERSITY
ARMY - US MILITARY ACADEMY
AUBURN UNIVERSITY
BALL STATE UNIVERSITY
BAYLOR UNIVERSITY
BEMIDJI STATE UNIVERSITY
BOISE STATE UNIVERSITY
BOSTON COLLEGE
BOSTON UNIVERSITY
BOWLING GREEN STATE UNIV.
BRADLEY UNIVERSITY
BRIGHAM YOUNG
BROWN UNIVERSITY
BUTLER UNIVERSITY
CALIFORNIA - BERKELEY, U/
CALIFORNIA - DAVIS, U/
CALIFORNIA - LOS ANGELES, U/
CALIFORNIA - SANTA BARBARA, U/
CAL STATE CHICAGO
CAL STATE FULLERTON
CAL STATE NORTHRIDGE
CAL STATE SACRAMENTO
CAL STATE SAN MARCOS
CALIFORNIA U - PENNSYLVANIA
CANISIUS COLLEGE
CENTRAL FLORIDA
CENTRAL MICHIGAN UNIV.
CENTRAL MISSOURI ST UNIV.
CENTRAL WASHINGTON
CINCINNATI, U/
CITADEL UNIVERSITY
CLARION
CLEMSON UNIVERSITY
COLGATE UNIVERSITY
COLLEGE OF CHARLESTON
COLORADO SCHOOL OF MINES
COLORADO STATE
COLORADO, U/
COLUMBIA UNIVERSITY
CONNECTICUT, U/
CORNELL UNIVERSITY
CREIGHTON UNIVERSITY
DAYTON, U/
DENISON UNIVERSITY
DETROIT MERCY, U/
DRAKE UNIVERSITY
DREXEL UNIVERSITY
DUKE UNIVERSITY
EAST CAROLINA UNIVERSITY
EAST TENNESSEE ST UNIV.
EASTERN KENTUCKY UNIV.
EASTERN ILLINOIS UNIVERSITY
EASTERN MICHIGAN UNIVERSITY
EMPORIA STATE UNIVERSITY
EVANSVILLE, U/
FAIRLEIGH DICKINSON UNIV.
FERRIS STATE UNIVERSITY
FLORIDA, U/
FLORIDA A&M
FLORIDA ATLANTIC UNIVERSITY
FLORIDA GULF COAST UNIVERSITY
FLORIDA STATE UNIVERSITY
FORT HAYS STATE UNIVERSITY
FRESNO STATE UNIVERSITY
GEORGE MASON UNIVERSITY
GEORGE WASHINGTON UNIVERSITY
GEORGIA , U/
GEORGIA COLLEGE AND STATE
GEORGIA STATE UNIVERSITY
GEORGIA SOUTHERN UNIVERSITY
GEORGIA TECH
GEORGETOWN UNIVERSITY
GRAMBLING STATE UNIVERSITY
HARTFORD, U/
HOFSTRA UNIVERSITY
HOUSTON UNIVERSITY
IDAHO, U/
IDAHO STATE UNIVERSITY
ILLINOIS, U/
ILLINOIS STATE UNIVERSITY
INDIANA STATE UNIVERSITY
INDIANA UNIV-PENNSYLVANIA
IOWA STATE UNIVERSITY
IOWA, U/
JACKSON STATE UNIVERSITY
JACKSONVILLE ST UNIV.
JAMES MADISON UNIVERSITY
KANSAS, U/
KANSAS STATE UNIVERSITY
KENTUCKY, U/
KENT STATE
LAMAR UNIVERSITY
LINCOLN UNIVERSITY
LOUISIANA - LAFAYETTE, U/
LOUISIANA ST UNIV.
LOYOLA COLLEGE - MARYLAND
LOYOLA UNIVERSITY CHICAGO
MAINE, U/
MANHATANVILLE COLLEGE
MARSHALL U/ MARSHALL GRAD
MARYLAND, U/
MASSACHUSETTS - AMHERST, U/
MEMPHIS, U/
MERCER UNIVERSITY
MIAMI, U/
MIAMI UNIVERSITY - OHIO
MICHIGAN, U/
MICHIGAN STATE UNIVERSITY
MIDDLE TENNESSEE ST UNIV.
MINNESOTA STATE U - MANKATO
MISSISSIPPI, U/
MISSISSIPPI STATE UNIVERSITY
MISSOURI, U/
MISSOURI - KANSAS CITY, U/
MONTANA, U/
MONTANA STATE UNIVERSITY
MONTCLAIR STATE
MOREHEAD STATE UNIVERSITY
MORGAN STATE UNIVERSITY
U.S NAVAL ACADEMY
NEBRASKA, U/
NEBRASKA KEARNEY, U/
NEVADA, U/
NEVADA LAS VEGAS (UNLV)
NEW HAMPSHIRE, U/
NEW MEXICO, U/
NEW MEXICO ST UNIV.
NEW ORLEANS, U/
NEW YORK STATE
NEW YORK UNIV
NIAGRA UNIVERSITY
NORFOLK STATE UNIVERSITY
NORTH CAROLINA A&T
NORTH CAROLINA (UNC) CH. HILL
NO. CAROLINA - GREENSBORO
NORTH CAROLINA CENTRAL
NORTH CAROLINA CHARLOTTE
NO. CAROLINA ST. UNIV.
NO. CAROLINA - WILMINGTON
NORTH DAKOTA, U/
NORTH FLORIDA, U/
NORTH GEORGIA STATE UNIVERSITY
NORTH TEXAS UNIVERSITY
NORTHERN ARIZONA
NORTHERN ILLINOIS UNIV.
NORTHERN IOWA, U/
NORTHWESTERN UNIVERSITY
NOTRE DAME
OHIO UNIVERSITY
OHIO STATE UNIVERSITY
OKLAHOMA, U/
OKLAHOMA STATE UNIVERSITY
OLD DOMINION UNIVERSITY
ORAL ROBERTS UNIVERSITY
U/ OREGON
ORERGON STATE UNIVERSITY
PACIFIC, U/
PENNSYLVANIA, U/
PENN STATE UNIVERSITY
PEPPERDINE UNIVERSITY
PITTSBURGH, U/
PITTSBURG STATE UNIVERSITY
PORTLAND STATE UNIVERSITY
PRAIRIE VIEW A&M UNIVERSITY
PRINCETON UNIVERSITY
PURDUE UNIVERSITY
RHODE ISLAND, U/
RICE UNIVERSITY
RICHMOND, U/
RUTGERS U/, NEW BRUNSWICK
SAINT LOUIS UNIVERSITY
SAN DIEGO, U/
SAN DIEGO STATE UNIVERSITY
SAN FRANCISCO, U/
SAN FRANCISCO STATE
SAN JOSE STATE UNIVERSITY
SANTA CLARA UNIVERSITY
SETON HALL UNIVERSITY
SHIPPENSBURG UNIVERSITY
SLIPPERY ROCK - PENN, U/
SOUTH ALABAMA, U/
SOUTH CAROLINA, U/
SOUTH FLORIDA, U/
SOUTHEAST MISSOURI ST UNIV
SOUTHEASTERN LOUISIANA UNIVERSITY
SOUTHERN CONNECTICUT STATE
SOUTHERN ILLINOIS UNIV.
SOUTHERN METHODIST UNIV
SOUTHERN MISSISSIPPI, U/
SOUTHERN UTAH
SPELMAN COLLEGE
ST. BOVAVENTURE UNIVERSITY
ST. CLOUD STATE
ST. JOHN'S UNIVERSITY
STANFORD UNIVERSITY
SUNY AT ALBANY
SUNY BUFFALO - BUFFALO MED
SYRACUSE UNIVERSITY
TENNESSEE, U/
TENNESSEE, MARTIN U/
TENNESSEE, CHATTANOOGA U/
TENNESSEE, MEMPHIS U/
TENNESSEE STATE UNIVERSITY
TENNESSEE TECH UNIVERSITY
TEXAS, U/
TEXAS ARLINGTON UNIVERSITY
TEXAS A&M UNIVERSITY
TEXAS A&M INTERNATIONAL UNIVERSITY
TEXAS CHRISTIAN UNIVERSITY
TEXAS TECH UNIVERSITY
TEXAS SOUTHERN UNIVERSITY
TOLEDO, U/
TRUMAN STATE UNIVERSITY
TULANE UNIVERSITY
TULSA, U/
UTAH STATE UNIVERSITY
UTAH, U/
VALPARAISO UNIVERSITY
VANDERBILT UNIVERSITY
VILLANOVA
VIRGINIA, U/
VIRGINIA COMMONWEALTH UNI.
VIRGINIA STATE UNIVERSITY
WAKE FOREST UNIVERSITY
WASHINGTON, U/
WASHINGTON UNIV. - ST LOUIS
WASHINGTON STATE UNIV.
WAYNE STATE UNIVERSITY
WEBER STATE UNIVERSITY
WEST FLORIDA UNIVERSITY
WEST VIRGINIA STATE
WEST VIRGINIA UNIVERSITY
WESTERN ILLINOIS UNIV.
WESTERN KENTUCKY UNIV.
WESTERN MICHIGAN
WESTERN STATE COLLEGE OF COLORADO
WESTERN WASHINGTON UNIVERSITY
WILLIAM & MARY, COLLEGE OF
WINTHROP UNIVERSITY
WISCONSIN, U/
WISCONSIN, U/ - LACROSSE
WISCONSIN, U/ - MILWAUKEE
WISCONSIN, U/ - PLATTEVILLE
WISCONSIN, U/ - RIVER FALLS
WISCONSIN, U/ - STEVENS POINT
WISCONSIN, U/ - STOUT
WISCONSIN, U/ - WHITEWATER
WOFFORD COLLEGE
WRIGHT STATE UNIVERSITY
WYOMING, U/
XAVIER UNIVERSITY
YALE UNIVERSITY
YOUNGSTOWN STATE UNIV.
SCHEDULE 7.1(y)
REAL ESTATE
OWNED REAL ESTATE
(1) 755 Lee Street
Alexander City, AL 35010
(Alexander City Complex)
(2) 555 S. Main Street
Brundidge, AL
(Brundidge Plant)
(3) 1 Retail Drive
Montgomery, AL
(Montgomery DC)
(4) 6175 Lynch Road
Midland, GA
(Columbus DC)
(5) 3145 Elmore Rd.
Hwy 14
Wetumpka, AL
(Coosa River Complex)
(6) Highway 52 South
Mt. Airy, NC 27030
(7) Riverside Drive
Mt. Airy, NC
(Cloth Plant/CC Knitting)
(8) 1493 County Road 609
Fort Payne, AL 35967
(9) Sandy Valley Road
Ft. Payne, AL 35967
(Dyeing/Finishing/Warehouse)
(10) 3562 Hwy. 280
Alexander City, AL 35010
OWNED REAL ESTATE HELD FOR SALE
See Schedule 1.1A.
LEASED REAL ESTATE FOR TERM LONGER THAN THREE YEARS
(1) 3330 Cumberland Blvd., Suite 800
Atlanta, GA 30339
(2) 485 Seventh Avenue
Suite 404
New York, NY 10018
(Execution Pending)
SCHEDULE 7.1(z)
CORPORATE AND FICTITIOUS NAMES
Jerzees Apparel, LLC did business as "Three Rivers" in Georgia during the period
from September 2000 until approximately June 2001.
Cross Creek Apparel, Inc. merged into Cross Creek Apparel, LLC in December 2000.
Russell Corporation has been known as Russell Mills and Russell Fabrics.
SCHEDULE 7.1(cc)
EMPLOYEE RELATIONS
COLLECTIVE BARGAINING AGREEMENTS
(1) Collective Bargaining Agreement expiring December 31, 2002 relating to
certain employees of Russell Europe Limited
(2) Collective Bargaining Agreement expiring December 31, 2002 relating to
certain employees of Russell Mexico, S.A. de C.V.
SCHEDULE 7.1(dd)
TRADE NAMES
None.
SCHEDULE 10.8
USE OF PROCEEDS
$25,000,000 in Term Loans and $107,258,557.70 in initial Revolving Loans will be
used for the following:
I. PAYMENT OF A PORTION OF THE OUTSTANDING DEBT INDICATED BELOW (DOLLAR
AMOUNTS INDICATE THE TOTAL AMOUNT OF SUCH DEBT OWING TO THE RESPECTIVE
INSTITUTIONS IMMEDIATELY PRIOR TO THE INITIAL BORROWINGS):
(A) WACHOVIA REVOLVING CREDIT FACILITY
(1) To Wachovia Bank, N.A. on behalf of Lenders $ 90,049,513.91(1)
----------------
(2) To Fleet for further transfer in euros to $ 4,486,844.91(2)
Wachovia U.K. ----------------
(B) PRUDENTIAL NOTES (EXCLUSIVE OF `92 NOTES HELD BY PRUDENTIAL)
(1) To Prudential $ 211,218,047.62
----------------
(C) SUNTRUST TERM LOAN
(1) To SunTrust $ 37,663,561.28
----------------
(E) `92 NOTES
(1) To Prudential $ 432,554.22
----------------
(2) To Allstate $ 4,327,202.10
----------------
(3) To Teacher's $ 2,883,142.10
----------------
(4) To CIGNA $ 3,171,016.70
----------------
(F) TRANSACTION COSTS, PREPAYMENT FEES AND OTHER EXPENSES(3) $ 21,155,262
----------------
-----------------
(1) Does not reflect $12,734,355.89 of Letters of Credit issued by
Wachovia but assumed under the Fleet Credit Agreement, as assumption is
not a cash transaction.
(2) Based on 5,031,787.50 (5,000,000 + 31,787.5) euros at an exchange rate
of $.8917/1 euro. The transfer of funds to Wachovia U.K. will be
handled by Wachovia internally.
(3) Includes without limitation prepayment premiums and unwind fees, real
estate title insurance, recording fees and related expenses, lenders'
fees and legal fees and expenses.