EXHIBIT 10.11
NationsBank, NA
CREDIT AGREEMENT
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This Credit Agreement (the "Agreement") dated as of January 1, 1999, by and
between NationsBank, N.A. a national banking association ("Bank") and the
Borrower described below.
In consideration of the Letters of Credit described in Section 1.C. and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, Bank and Borrower agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. In addition to any other terms defined
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herein, the following terms shall have the meaning set forth with respect
thereto:
A. Borrower:
K&G Men's Center, Inc.,
a Georgia corporation
B. Borrower's Address:
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C. Letters of Credit. Any letter of credit issued by the Bank per the
Master Agreement For Letters of Credit executed by the Borrower (the "Master
Agreement"). The expiration date of this Letter of Credit commitment is February
29, 2000. Any letters of credit issued under this commitment must carry a
maturity date of no later than February 29, 2000.
D. Loan Documents. Loan Documents means this Credit Agreement and any
and all documents, instruments, certificates and agreements executed and/or
delivered by Borrower in connection with any Letters of Credit.
E. Tangible Net Worth. Tangible Net Worth means the amount by which
total liabilities exceed total liabilities less all intangible assets to include
patents, goodwill, advances or loans assets to/receivables from affiliates and
stockholders, plus subordinated debt.
F. EBITDAR. EBITDAR means earnings before interest expense, income
taxes, depreciation expense, amortization expense, and rent or lease expense for
a given period.
G. Accounting Terms. All accounting terms not specifically defined or
specified herein shall have the meanings generally attributed to such terms
under generally accepted accounting principles ("GAAP"), as in effect from time
to time, consistently applied, with respect to the financial statements
referenced in Section 2.H. hereof.
2. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants
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to Bank as follows:
A. Good Standing. Borrower is a corporation, duly organized, validly
existing and in good standing under the laws of Georgia and has the power and
authority to own its property and to carry on its business in each jurisdiction
in which Borrower does business.
B. Authority and Compliance. Borrower has full power and authority to
execute and deliver the Loan Documents and to incur and perform the obligations
provided for therein; all of which have been duly authorized by all proper and
necessary action of the appropriate governing body of Borrower. No consent or
approval of any public authority or other third party is required as a condition
to the validity of any Lean Document, and Borrower is in compliance with all
laws and regulatory requirements to which it is subject.
C. Binding Agreement. This Agreement and the other Loan Documents
executed by Borrower constitute valid and legally binding obligations of
Borrower, enforceable in accordance with their terms, except as the
enforceability therein may be limited by bankruptcy, insolvency, reorganization
and other laws affecting the enforcement of creditors' rights generally and
except as may be limited by general equitable principles.
D. Litigation. There is no material proceeding involving Borrower
pending or, to the knowledge of Borrower, threatened before any court or
governmental authority, agency or arbitration authority, except as disclosed to
Bank in writing and acknowledged by Bank prior to the date of this Agreement.
E. No Conflicting Agreements. There is no charter, bylaw, stock
provision, partnership agreement or other document pertaining to the
organization, power or authority of Borrower and no provision of any existing
agreement, mortgage, indenture or contract binding on Borrower or affecting its
property, which would conflict with or in any way prevent the execution,
delivery or carrying out of the terms of this Agreement and the other Loan
Documents.
F. Ownership of Assets. Borrower has good title to its assets, and its
material assets are free and clear of liens, except those disclosed to Bank in
writing prior to the date of this Agreement.
G. Liens. Borrower agrees that, for so long as any part of the Letters
of Credit remains outstanding, it will not, without first obtaining the prior
written consent of Bank, create or permit any lien, encumbrance, charge, or
security interest of any kind to exist on inventory now owned or hereafter
acquired.
H. Taxes. All taxes and assessments due and payable by Borrower have
been paid or are being contested in good faith by appropriate proceedings and
the Borrower has filed all tax returns which it is required to file.
I. Financial Statements. The unaudited financial statements of
Borrower heretofore delivered to Bank have been prepared in accordance with GAAP
applied on a consistent basis throughout the period involved and fairly present
Borrower's financial condition in all material respects as of the date or dates
thereof, and there has been no material adverse change in Borrower's financial
condition or operations since November 1, 1998. All factual information
furnished by Borrower to Bank in connection with this Agreement and the other
Loan Documents is and will be accurate and complete in all material respects on
the date as of which such information is delivered to Bank.
J. Place of Business. Borrower's chief executive office is located at
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K. Continuation of Representations and Warranties. All representations
and warranties made under this Agreement shall be deemed to be made at and as of
the date hereof and at and as of the date of any advance under any Letter of
Credit, provided that Borrower shall have reasonable opportunity to update its
disclosure requirements hereunder at such time.
3. AFFIRMATIVE COVENANTS. Until full payment and performance of all
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obligations of Borrower under the Loan Documents, Borrower will, unless Bank
consents otherwise in writing (and without limiting any requirement of any other
Loan Document):
A. Financial Condition. Maintain Borrower's financial condition as
follows, determined in accordance with GAAP applied on a consistent basis
throughout the period involved except to the extent modified by the following
definitions:
i. Maintain minimum Tangible Net Worth at all times of
$10,000,000 plus 50% of net income for each fiscal quarter
thereafter.
ii. Maintain a fixed charge coverage ratio defined as EBITDAR
divided by the aggregate of the current portion of long-term
debt and capital lease obligations plus interest expense plus
rent or lease expense, of not less than 2.25 to 1.0,
calculated each fiscal quarter on a rolling 4 quarter basis.
B. Financial Statements and Other Information. Unless written notice
of another location is given to Bank, Borrower's books and records will be
located at Borrower's chief executive office set forth above. All financial
statements called for below shall be prepared in form and content reasonably
acceptable to Bank and by independent certified public accountants acceptable to
Bank.
i. Quarterly unaudited financial statements;
ii. Annual audited financial statements
In addition, Borrower will:
i. Furnish to Bank a compliance certificate for (and executed by
an authorized representative of Borrower concurrently with and
dated as of the date of delivery of each of the financial
statements as required in paragraphs i and ii above,
containing (a) a certification that the financial statements
of even date are true and correct in all material respects and
that the Borrower is not in default under the terms of this
Agreement, and (b) computations and conclusions, in such
detail as Bank may reasonably request, with respect to
compliance with this Agreement, and the other Loan Documents,
including computations of all quantitative covenants as
defined above.
ii. Furnish to Bank promptly such additional information, reports
and statements respecting the business operations and
financial condition of Borrower, from time to time, as Bank
may reasonably request.
C. Insurance. Maintain insurance with responsible insurance companies
on such of its properties, in such amounts and against such risks as the
Borrower deems sufficient, in its discretion, specifically to include fire and
extended coverage insurance covering all assets, business interruption
insurance, workers compensation insurance and liability insurance.
D. Existence and Compliance. Maintain its existence, good standing and
qualification to do business, where required and comply with all material laws,
regulations and governmental requirements including, without limitation,
environmental laws applicable to it or to any of its property, business
operations and transactions, the violation of which would cause a material
adverse effect on the Borrower's financial condition.
E. Adverse Conditions or Events. Promptly advise Bank in writing of
(i) any condition, event or act which comes to its attention that could be
reasonably expected to materially adversely affect Borrower's financial
condition or operations or Bank's rights under the Loan Documents, (ii) any
litigation filed by or against Borrower, (iii) any event that has occurred that
would constitute an event of default under any Loan Documents and (iv) any
uninsured or partially uninsured loss through fire, theft, liability or property
damage in excess of an aggregate of $1,000,000.
F. Taxes and Other Obligations. Pay all of its taxes, assessments and
other obligations, including, but not limited to taxes, costs or other expenses
arising out of this transaction, as the same become due and payable, except to
the extent the same are being contested in good faith by appropriate proceedings
in a diligent manner.
G. Maintenance. Maintain all of its tangible property in good
condition and repair and make all reasonable necessary replacements thereof, and
take all reasonable steps to preserve and maintain all licenses, trademarks,
privileges, permits, franchises, certificates and the like reasonably necessary
for the operation of its business.
4. DEFAULT. Borrower shall be in default under this Agreement and under
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each of the other Loan Documents (i) if it shall default in the payment of any
amounts due and owing under the Letters of Credit within 10 days of receipt of
written notice of such nonpayment or should it fail to timely and properly
observe, keep or perform any term, covenant, agreement or condition in any Loan
Document within 30 days of receipt of written notice of such noncompliance or in
any other loan agreement, promissory note, security agreement, deed of trust,
deed to secure debt, mortgage, assignment or other contract securing or
evidencing payment of any indebtedness of Borrower to Bank or any affiliate or
subsidiary of NationsBank Corporation; or, (ii) if it shall default in the
payment of any material amounts due and owing SunTrust Bank, Atlanta, within 20
days of receipt of written notice of such nonpayment.
5. REMEDIES UPON DEFAULT. If an event of default under Section 4 shall
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occur and shall have not been cured, Bank shall have all rights, powers and
remedies available under each of the Loan Documents as well as all rights and
remedies available at law or in equity.
6. NOTICES. All notices, requests or demands that any party is required or
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may desire to give to any other party under any provision of this Agreement must
be in writing delivered to the other party at the following address:
Borrower:
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Bank:
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or to such other address as any party may designate by written notice to the
other party. Each such notice, request and demand shall be deemed given or made
as follows:
A. If sent by mail, upon the earlier of the date of receipt or five
(5) days after deposit in the U.S. Mail, first class postage prepaid;
B. If sent by any other means, upon delivery.
7. MISCELLANEOUS. Borrower and Bank further covenant and agree as follows,
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without limiting any requirement of any other Loan Document:
A. Cumulative Rights and No Waiver. Each and every right granted to
Bank under any Loan Document, or allowed it by law or equity shall be cumulative
of each other and may be exercised in addition to any and all other rights of
Bank, and no delay in exercising any right shall operate as a waiver thereof,
nor shall any single or partial exercise by Bank of any right preclude any other
or future exercise thereof or the exercise of any other right. Borrower
expressly waives any presentment, demand, protest or other notice of any kind,
including but not limited to notice of intent to accelerate and notice of
acceleration. No notice to or demand on Borrower in any case shall, of itself,
entitle Borrower to any other or future notice or demand in similar or other
circumstances.
B. Applicable Law. This Credit Agreement and the rights and
obligations of the parties hereunder shall be governed by and interpreted in
accordance with the laws of Georgia and applicable United States federal law.
C. Amendment. No modification, consent, amendment or waiver of any
provision of this Credit Agreement, nor consent to any departure by Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
an officer of Bank, and then shall be effective only in the specified instance
and for the purpose for which given. This Credit Agreement is binding upon
Borrower, its successors and assigns, and inures to the benefit of Bank, its
successors and assigns; however, no assignment or other transfer of Borrower's
rights or obligations hereunder shall be made or be effective without Bank's
prior written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Credit Agreement.
D. Documents. All documents, certificates and other items required
under this Credit Agreement to be executed and/or delivered to Bank shall be in
form and content satisfactory to Bank and its counsel.
E. Partial Invalidity. The unenforceability or invalidity of any
provision of this Credit Agreement shall not affect the enforceability or
validity of any other provision herein and the invalidity or unenforceability of
any provision of any Loan Document to any person or circumstance shall not
affect the enforceability or validity of such provision as it may apply to other
persons or circumstances.
F. Survivability. All covenants, agreements, representations and
warranties made herein or in the other Lean Documents shall survive the mailing
of the Letters of Credit and shall continue in full force and effect so long as
the Letters of Credit are outstanding or the obligation of the Bank to make any
advances under the Letter of Credit shall not have expired.
8. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
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HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS,
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE
WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE
LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL
DISPUTES OF J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE
"SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL
RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION,
INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY
CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
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BORROWER'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT OR
DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN
THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL
BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
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DEEMED TO (1) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS ARBITRATION PROVISION; OR
(II) BE A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC.
91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE
BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS BUT NOT LIMITED TO)
SETOFF, OR ) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR
(C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS UT NOT
LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY. OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE
A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION,
TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
9. NO ORAL AGREEMENT. THIS WRITTEN CREDIT AGREEMENT AND THE OTHER LOAN
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DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of the date
first above written.
K & G MEN'S CENTER, INC. NATIONSBANK, N.A.
By: By:
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Name: Name:
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Title: Title:
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(SEAL) (SEAL)