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EXHIBIT 10.43
CREDIT AGREEMENT
Dated as of January 23, 1997
among
WESTPOINT ▇▇▇▇▇▇▇ (UK) LIMITED
and
▇. ▇. FLOWER & CO. LIMITED
as Borrowers,
WESTPOINT ▇▇▇▇▇▇▇ INC.
as Guarantor,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK, N.A.,
as Agent
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of January 23, 1997 (the "Credit
Agreement"), is by and among WESTPOINT ▇▇▇▇▇▇▇ (UK) LIMITED ("UK Holdings"), a
limited liability company incorporated in England, P. J. FLOWER & CO. LIMITED
("Flower"), a limited liability company incorporated in England (Flower and UK
Holdings hereinafter may each be referred to as a "Borrower" or, collectively,
as the "Borrowers"), WESTPOINT ▇▇▇▇▇▇▇ INC., a Delaware corporation (the
"Guarantor"), the several lenders identified on the signature pages hereto and
such other lenders as may from time to time become a party hereto (the
"Lenders") and NATIONSBANK, N.A., as agent for the Lenders (in such capacity,
the "Agent").
W I T N E S S E T H
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement, dated as of November 23, 1994, among the Guarantor (as borrower
thereunder), the Lenders, and the Agent, the Lenders have extended to the
Guarantor (as borrower) certain revolving credit and letter of credit facilities
(as amended from time to time, the "WestPoint Credit Agreement");
WHEREAS, UK Holdings is a wholly-owned subsidiary of the Guarantor, and
Flower is a wholly-owned subsidiary of UK Holdings;
WHEREAS, the Guarantor, UK Holdings, and Flower have requested the
Lenders to provide certain foreign currency revolving credit and letter of
credit facilities to UK Holdings and Flower, such facilities to be denominated
in pounds sterling;
WHEREAS, the Lenders and the Agent have agreed to provide such foreign
currency revolving credit and letter of credit facilities to UK Holdings and
Flower upon the terms and conditions contained in this Credit Agreement; and
WHEREAS, it is the express intention of the Lenders, the Agent, the
Guarantor, and the Borrowers that this Credit Agreement shall supplement the
WestPoint Credit Agreement by allowing UK Holdings and Flower to borrow and
obtain letters of credit in pounds sterling, and although this Credit Agreement
supplements the facilities provided to the Guarantor (as a borrower) under the
WestPoint Credit Agreement, no term, condition, or other provision of this
Credit Agreement shall limit, modify, impair or affect any term, condition or
other provision of the WestPoint Credit Agreement;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions. As used in this Credit Agreement, the following terms
shall have the meanings specified below unless the context otherwise requires:
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"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, administrator, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or ordering the winding up or liquidation of its affairs; or
(ii) there shall be commenced against such Person an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
administrator, sequestrator (or similar official) of such Person or for
any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (iii) such
Person shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent
to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, administrator,
sequestrator (or similar official) of such Person general assignment
for the benefit of creditors; or (iv) such Person shall be unable to,
or shall admit in writing its inability to, pay its debts generally as
they become due.
"Borrower" or "Borrowers" has the meaning ascribed to such
terms in the Recitals hereof, together with any successors and
permitted assigns.
"Borrowers' Obligations" means the sum of (i) Foreign Currency
Loans, (ii) Foreign LOC Obligations, and (iii) all other charges, fees,
expenses and liabilities of the Borrowers arising hereunder or in
connection herewith.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina are
authorized or required by law to close, and such day shall also be a
day on which dealings in Pounds Sterling are being carried on between
banks in London, England.
"Closing Date" means January 23, 1997.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Foreign Currency Loans up to the
amount of its Foreign Currency Commitment Percentage of the Foreign
Currency Committed Amount (including the commitment of such Lender to
participate in the Foreign Letters of Credit), and "Commitments" means
such commitments of the Lenders collectively.
"Credit Documents" means a collective reference to this Credit
Agreement, the Foreign Currency Notes, the LOC Documents, and all other
related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Credit Party" means any of the Borrowers and the Guarantor.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
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"Determination Date" means:
(a) the date two Business Days prior to the date any Foreign
Currency Loan is made or any Foreign Letter of Credit is issued;
(b) the date two Business Days prior to the date any Foreign
Currency Loan is continued from the current Interest Period for such
Foreign Currency Loan into a subsequent Interest Period;
(c) the date of any drawing under any Foreign Letter of
Credit;
(d) the last Business Day of each month; or
(e) the date of any reduction of the Foreign Currency
Committed Amount pursuant to the terms of Section 3.4(a).
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount
of Pounds Sterling or an amount denominated in Pounds Sterling, the
Dollar Equivalent of such amount on the applicable date contemplated in
this Credit Agreement.
"Dollar Equivalent" means, on any date, with respect to an
amount denominated in Pounds Sterling, the amount of Dollars into which
the Agent could, in accordance with its practice from time to time in
the interbank foreign exchange market, convert such amount of Pounds
Sterling at its spot rate of exchange (inclusive of all reasonable
related costs of conversion) applicable to the relevant transaction at
or about 10:00 A.M., Charlotte, North Carolina time, on such date.
"Eligible Assignee" means any Lender or Affiliate or
subsidiary of a Lender, and any other commercial bank, financial
institution or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission) reasonably acceptable to the Agent
and the Borrowers.
"Event of Default" means such term as defined in Section 9.1.
"Eurocurrency Rate" means, for the Interest Period for each
Foreign Currency Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate equal
to the sum of (i) the per annum rate of interest determined by the
Agent on the basis of the offered rates for deposits in Pounds Sterling
(for a period of time corresponding to such Interest Period and
commencing on the first day of such Interest Period) which appear on
Telerate Page 3750 (or such other page as may replace that page on that
service) as of 11:00 a.m. (London time) two Business Days before the
first day of such Interest Period (provided that if at least two such
offered rates appear on Telerate Page 3750 (or such other page as may
replace that page on that service), the rate in respect of such
Interest Period will be the arithmetic mean of such offered rates) plus
(ii) the MLA Cost. If for any reason the foregoing rates are
unavailable from the Telerate service, then the Eurocurrency Rate shall
be equal to the sum of (i) a market rate for the applicable Foreign
Currency Loan for the applicable Interest Period as reasonably
determined by the Agent plus (ii) the MLA Cost.
"Foreign Currency Commitment Percentage" means, for any
Lender, the percentage identified as its Foreign Currency Commitment
Percentage on Schedule 2.1(a), as such percentage
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may be modified in connection with any assignment made in accordance
with the provisions of Section 11.3.
"Foreign Currency Committed Amount" shall have the meaning
assigned to such term in Section 2.1(a).
"Foreign Currency Equivalent" means, on any date, with respect
to an amount denominated in Dollars, the amount of Pounds Sterling into
which the Agent could, in accordance with its practice from time to
time in the interbank foreign exchange market, convert such amount of
Dollars at its spot rate of exchange (inclusive of all reasonable
related costs of conversion) applicable to the relevant transaction at
or about 10:00 A.M., Charlotte, North Carolina time, on such date.
"Foreign Currency Loans" shall have the meaning assigned to
such term in Section 2.1(a).
"Foreign Currency Note" means a promissory note of a Borrower
in favor of a Lender delivered pursuant to Section 2.1(e) and
evidencing the Foreign Currency Loans of such Lender to such Borrower,
as such promissory note may be amended, modified, restated or replaced
from time to time.
"Foreign Letter of Credit" means any letter of credit issued
by the Issuing Lender for the account of either Borrower in accordance
with the terms of Section 2.2.
"Foreign LOC Commitment" means the commitment of the Issuing
Lender to issue Foreign Letters of Credit in an aggregate face amount
at any time outstanding (together with the amounts of any unreimbursed
drawings thereon) of up to the Foreign LOC Committed Amount.
"Foreign LOC Committed Amount" shall have the meaning assigned
to such term in Section 2.2.
"Foreign LOC Obligations" means, at any time, the sum of (i)
the maximum amount which is, or at any time thereafter may become,
available to be drawn under Foreign Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Foreign Letters of Credit plus (ii) the aggregate amount of all
drawings under Foreign Letters of Credit honored by the Issuing Lender
but not theretofore reimbursed.
"Guarantor" means WestPoint ▇▇▇▇▇▇▇ Inc.
"Interest Payment Date" means, for any Foreign Currency Loan,
the last day of each Interest Period for such Foreign Currency Loan and
the Termination Date, and in addition where the applicable Interest
Period is more than 3 months, then also the date 3 months from the
beginning of the Interest Period, and each 3 months thereafter. If an
Interest Payment Date falls on a date which is not a Business Day, the
Interest Payment Date shall be deemed to be the next succeeding
Business Day, except that where the next succeeding Business Day falls
in the next succeeding calendar month, then on the next preceding
Business Day.
"Interest Period" means a period of one, two, three or six
months' duration, as the applicable Borrower may elect, commencing, in
each case, on the date of the borrowing (including conversions,
extensions and renewals), provided, however, (A) if any Interest Period
would end on
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a day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day (except that where the
next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding Business Day), (B) no Interest Period
shall extend beyond the Termination Date, and (C) where an Interest
Period begins on a day for which there is no numerically corresponding
day in the calendar month in which the Interest Period is to end, the
Interest Period shall end on the last Business Day of such calendar
month.
"Interim Foreign Currency Rate" means, for any day, with
respect to any Foreign Currency Loan, any participation in a Foreign
Letter of Credit or any unreimbursed drawing under a Foreign Letter of
Credit, a rate per annum equal to the sum of (i) the average rate at
which overnight deposits in Pounds Sterling and approximately equal in
principal amount to the applicable Foreign Currency Loan or Foreign
Letter of Credit are obtainable by the Agent (or, in the case of any
Foreign Letter of Credit, the Issuing Lender) on such day in the
interbank market, adjusted to reflect any direct or indirect costs of
obtaining such deposits plus (ii) the MLA Cost. The Interim Foreign
Currency Rate shall be determined for each day by the Agent or Issuing
Lender, as appropriate, and such determination shall be conclusive
absent manifest error.
"Issuing Lender" means NationsBank.
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and each Person which may become a
Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"LOC Documents" means, with respect to any Foreign Letter of
Credit, such Foreign Letter of Credit, any amendments thereto, any
documents delivered in connection therewith, any application therefor,
and any agreements, instruments, guarantees or other documents (whether
general in application or applicable only to such Foreign Letter of
Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk or (ii) any collateral security for
such obligations.
"MLA Cost" means, with respect to any Foreign Currency Loan
made by any Lender, the cost imputed to such Lender of compliance with
the Mandatory Liquid Assets requirements of the Bank of England during
the Interest Period applicable to such Foreign Currency Loan, expressed
as a rate per annum and determined in accordance with Schedule 1.1A.
"NationsBank" means NationsBank, N.A. and its successors.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 1.1B, as required by Section
2.1(b)(i).
"Notice of Extension" means the written notice of extension in
substantially the form of Schedule 1.1C as required by Section 3.2.
"Participation Interest" means, the extension of credit by a
Lender by way of a purchase of a participation in any Foreign Letters
of Credit or Foreign LOC Obligations as provided in Section 2.2(c) or
Section 2.2(f), or in any Foreign Currency Loans as provided in Section
3.12.
"Pounds Sterling" means the lawful currency of the United
Kingdom.
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"Qualifying Lender" means any Lender which (i) as of the
Closing Date, is a bank for the purposes of section 349 Income and
Corporation Taxes Act 1988 of the United Kingdom (which under current
law has the meaning given in Section 840A of such Act) and (ii) as of
the Closing Date, will be within the charge to United Kingdom
corporation tax as respects payments of interest to be received by it
under this Credit Agreement and the Foreign Currency Notes.
"Regulation G, T, U, or X" means Regulation G, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Reimbursing Borrower" shall have the meaning assigned to such
term in Section 2.2(d).
"Reimbursement Date" shall have the meaning assigned to such
term in Section 2.2(d).
"Required Lenders" means, as of the date of determination
thereof, the Lenders having 51% or more of the aggregate principal
amount of the Commitments then outstanding.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents (including, in the case of the Borrowers, their Memorandum of
Association and Articles of Association) of such Person , and any law,
treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its material property.
"Termination Date" means the earliest to occur of (i) May 23,
2001, (ii) the date upon which the Foreign Currency Committed Amount
shall have been reduced to $0 pursuant to this Credit Agreement or
(iii) the occurrence of the "Revolver Termination Date" within the
meaning of the WestPoint Credit Agreement.
"WestPoint Credit Agreement" has the meaning ascribed to such
term in the Recitals hereof.
"WestPoint Letters of Credit" means collectively the
Commercial Letters of Credit and Standby Letters of Credit outstanding
pursuant to the terms of the WestPoint Credit Agreement and documents
related thereto.
"WestPoint Loan" means the Revolving Loans outstanding
pursuant to the terms of the WestPoint Credit Agreement.
1.2 Other Capitalized Terms. Any capitalized term which is not
otherwise defined herein shall have the meaning ascribed to such term in the
WestPoint Credit Agreement.
1.3 Computation of Time Periods. For purposes of computation of periods
of time hereunder, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding."
1.4 Accounting Terms. Except as otherwise expressly provided herein,
all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis.
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SECTION 2
CREDIT FACILITIES
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2.1 Foreign Currency Loan Facility.
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(a) Foreign Currency Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and
warranties set forth herein, each Lender severally agrees to make
available to the Borrowers such Lender's Foreign Currency Commitment
Percentage of revolving credit loans in Pounds Sterling ("Foreign
Currency Loans") from time to time from the Closing Date until the
Termination Date, or such earlier date as the Commitments shall have
been terminated as provided herein for the purposes hereinafter set
forth; provided, however, that the Dollar Amount (as determined as of
the most recent Determination Date) of the aggregate amount of Foreign
Currency Loans outstanding at any time shall not exceed TWENTY MILLION
DOLLARS ($20,000,000.00) (the "Foreign Currency Committed Amount");
provided, further, (i) with regard to each Lender individually, the
Dollar Amount of such Lender's outstanding Foreign Currency Loans shall
not exceed such Lender's Foreign Currency Commitment Percentage of the
Foreign Currency Committed Amount, (ii) with regard to the Lenders
collectively, the sum of the Dollar Amount (as determined as of the
most recent Determination Date) of the aggregate principal amount of
outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of Foreign LOC
Obligations outstanding shall not at any time exceed the Foreign
Currency Committed Amount and (iii) with regard to the Lenders
collectively, the aggregate principal amount of outstanding WestPoint
Loans plus WestPoint Letters of Credit plus the Dollar Amount (as
determined as of the most recent Determination Date) of the aggregate
principal amount of outstanding Foreign Currency Loans plus the Dollar
Amount (as determined as of the most recent Determination Date) of
Foreign LOC Obligations outstanding shall not exceed the Total
Commitments. Foreign Currency Loans may be repaid and reborrowed in
accordance with the provisions hereof; provided, however, that no more
than 5 separate Foreign Currency Loans shall be outstanding hereunder
at any time. For purposes hereof, Foreign Currency Loans with different
Interest Periods shall be considered as separate Foreign Currency
Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new Foreign Currency Loan with a single Interest Period.
(b) Foreign Currency Loan Borrowings.
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(i) Notice of Borrowing. Either Borrower shall
request a Foreign Currency Loan borrowing by written notice
(or telephonic notice promptly confirmed in writing) to the
office of the Agent specified in Section 3.13(b) not later
than 12:00 Noon (London. time) on the third Business Day prior
to the date of the requested borrowing. Each such request for
borrowing shall be irrevocable and shall specify (A) that a
Foreign Currency Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed, and (D) the
Interest Period(s) therefor. If the Borrower(s) shall fail to
specify in any such Notice of Borrowing an applicable Interest
Period, then such notice shall be deemed to be a request for
an Interest Period of one month. The Agent shall give notice
to each Lender promptly upon
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receipt of each Notice of Borrowing pursuant to this Section
2.1(b)(i), the contents thereof and each Lender's share of any
borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Foreign Currency Loan
shall be in a minimum aggregate amount equal to (A) with
respect to the initial Loans of UK Holdings, the Foreign
Currency Equivalent of $4,000,000 and integral multiples of
$750,000 in excess thereof (or the remaining amount of the
Foreign Currency Committed Amount, if less), and (B) with
respect to all other Loans, the Foreign Currency Equivalent of
$1,500,000 and integral multiples of $750,000 in excess
thereof (or the remaining amount of the Foreign Currency
Committed Amount, if less).
(iii) Advances. Each Lender will make its Foreign
Currency Commitment Percentage of each Foreign Currency Loan
borrowing available to the Agent as specified in Section
3.13(b), or in such other manner as the Agent may specify in
writing, by 1:00 P.M. (London time) on the date specified in
the applicable Notice of Borrowing in Pounds Sterling and in
funds immediately available to the Agent. Such borrowing will
then be made available to the applicable Borrower by the Agent
by crediting the account of such Borrower on the books of the
Agent with the aggregate of the amounts made available to the
Agent by the Lenders and in like funds as received by the
Agent.
(c) Repayment. The principal amount of all Foreign Currency
Loans shall be due and payable in full in Pounds Sterling on the
Termination Date. The obligations of each Borrower to pay or repay any
amounts under this Credit Agreement shall be several.
(d) Interest. Subject to the provisions of Section 3.1,
Foreign Currency Loans shall bear interest at a per annum rate equal to
the Eurocurrency Rate plus the Borrowing Margin applicable to
Eurodollar Rate Loans. Interest on Foreign Currency Loans shall be
payable (in Pounds Sterling) in arrears on each Interest Payment Date.
(e) Foreign Currency Notes. The Foreign Currency Loans made by
each Lender shall be evidenced by a duly executed promissory note of
each Borrower to each Lender in substantially the form of Schedule
2.1(e).
(f) Financial Assistance Prohibition. Flower will use the
proceeds of the Foreign Currency Loans and will use the Foreign Letters
of Credit solely for the working capital purposes of Flower. Flower
will not use any proceeds of the Foreign Currency Loans nor any Foreign
Letter of Credit (i) to lend any sum to UK Holdings, (ii) for any
purpose which may be unlawful financial assistance for the purposes of
Part V, Chapter VI of the Companies ▇▇▇ ▇▇▇▇ or any other applicable
legislation, or (iii) for any other unlawful purpose.
2.2 Foreign Letter of Credit Subfacility.
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(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, the Lenders will participate
in the issuance by the Issuing Lender, from time to time and in Pounds
Sterling, of such Foreign Letters of Credit from the date five (5)
Business Days subsequent to the Closing Date until the date five (5)
Business Days prior to the Termination Date as either Borrower may
request, in a form acceptable to the Issuing Lender; provided, however,
that (i) the
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Dollar Amount (as determined as of the most recent Determination Date)
of the Foreign LOC Obligations outstanding shall not at any time exceed
TEN MILLION DOLLARS ($10,000,000) (the "Foreign LOC Committed Amount"),
(ii) the sum of the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of outstanding
Foreign Currency Loans plus the Dollar Amount (as determined as of the
most recent Determination Date) of Foreign LOC Obligations outstanding
shall not at any time exceed the Foreign Currency Committed Amount and
(iii) with regard to the Lenders collectively, the aggregate principal
amount of outstanding WestPoint Loans plus WestPoint Letters of Credit
plus the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of outstanding
Foreign Currency Loans plus the Dollar Amount (as determined as of the
most recent Determination Date) of Foreign LOC Obligations outstanding
shall not exceed the Total Commitments. No Foreign Letter of Credit
shall (x) have an original expiry date more than one year from the date
of issuance or (y) as originally issued or as extended, have an expiry
date extending beyond the Termination Date. Each Foreign Letter of
Credit shall comply with the related LOC Documents. The issuance and
expiry dates of each Foreign Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a
Foreign Letter of Credit shall be submitted by a Borrower to the
Issuing Lender at least three (3) Business Days prior to the requested
date of issuance. The Issuing Lender will, at least quarterly and more
frequently upon request, disseminate to each of the Lenders and the
Borrowers a detailed report specifying the Foreign Letters of Credit
which are then issued and outstanding and any activity with respect
thereto which may have occurred since the date of the prior report, and
including therein, among other things, the beneficiary, the face amount
and the expiry date as well as any payment or expirations which may
have occurred.
(c) Participation. Each Lender, upon issuance of a Foreign
Letter of Credit, shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Foreign Letter of
Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such
Foreign Letter of Credit (based on the respective Foreign Currency
Commitment Percentages of the Lenders) and shall absolutely,
unconditionally and irrevocably be obligated to pay in Pounds Sterling
to the Issuing Lender and discharge when due, its pro rata share of the
obligations arising under such Foreign Letter of Credit. Without
limiting the scope and nature of each Lender's participation in any
Foreign Letter of Credit, to the extent that the Issuing Lender has not
been reimbursed as required hereunder or under any such Foreign Letter
of Credit, each such Lender shall pay to the Issuing Lender in Pounds
Sterling its pro rata share of such unreimbursed drawing in same day
funds on the date three (3) Business Days after notification by the
Issuing Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) hereof. The obligation of each Lender to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not be
affected by the occurrence of a Default, an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve or
otherwise impair the obligation of the Reimbursing Borrower to
reimburse the Issuing Lender under any Foreign Letter of Credit,
together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Foreign Letter of Credit, the Issuing Lender will promptly notify the
Borrowers. The Borrower at whose request such Foreign Letter of Credit
was issued (the "Reimbursing Borrower") promises to reimburse the
Issuing Lender, on or prior to the date that is three Business Days
after any drawing under any Foreign Letter of Credit (the
"Reimbursement Date"), an amount equal to such drawing in same
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day funds (prior to the Reimbursement Date, the unreimbursed amount of
such drawing shall bear interest at a per annum rate equal to the
Interim Foreign Currency Rate plus the Borrowing Margin applicable to
Eurodollar Rate Loans). Unless the Reimbursing Borrower shall
immediately notify the Issuing Lender that it intends to otherwise
reimburse the Issuing Lender for such drawing, the Reimbursing Borrower
shall be deemed to have requested that the Lenders make a Foreign
Currency Loan on the Reimbursement Date in the amount of the drawing as
provided in subsection (f) below on the related Foreign Letter of
Credit, the proceeds of which will be used to satisfy the related
reimbursement obligations. If the applicable Borrower shall fail to
reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to
the Interim Foreign Currency Rate plus the Borrowing Margin applicable
to Eurodollar Rate Loans plus two percent (2%). Each Borrower's
reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment such Borrower may claim or have
against the Issuing Lender, the Agent, the Lenders, the beneficiary of
the Foreign Letter of Credit drawn upon or any other Person, including
without limitation any defense based on any failure of such Borrower or
any other Credit Party to receive consideration or the legality,
validity, regularity or unenforceability of the Foreign Letter of
Credit. The Issuing Lender will notify the other Lenders on the
Reimbursement Date of the amount of any unreimbursed drawing and each
Lender shall promptly pay, within three (3) Business Days of the
Reimbursement Date, to the Agent for the account of the Issuing Lender
in Pounds Sterling and in immediately available funds, the amount of
such Lender's pro rata share of such unreimbursed drawing. If such
Lender does not pay such amount to the Issuing Lender in full within
three (3) Business Days of the Reimbursement Date, such Lender shall,
on demand, pay to the Agent for the account of the Issuing Lender
interest on the unpaid amount during the period from the date three (3)
Business Days after the Reimbursement Date until such Lender pays such
amount to the Issuing Lender in full at a rate per annum equal to the
Interim Foreign Currency Rate. Each Lender's obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder or
under the WestPoint Credit Agreement, the existence of a Default or
Event of Default or the acceleration of the obligations of the
Borrowers hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the making of
each such payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing
Lender or such Lender, acquire a participation in an amount equal to
such payment (excluding the portion of such payment constituting
interest owing to the Issuing Lender) in the related unreimbursed drawn
portion of the Foreign LOC Obligation and in the interest thereon and
in the related LOC Documents, and shall have a claim against the
applicable Borrower with respect thereto.
(e) Interim Interest. In the event of any drawing under any
Foreign Letter of Credit, unless the Reimbursing Borrower shall
reimburse the Issuing Lender for such drawing in full on such date, the
unpaid amount of such drawing shall bear interest for the account of
the Issuing Lender at the Interim Foreign Currency Rate plus the
Borrowing Margin applicable to Eurodollar Rate Loans. Interest shall
accrue for each day from and including the date of any drawing under
any Foreign Letter of Credit to, but excluding, the date of payment in
full of such drawing (including by way of a Foreign Currency Loan
pursuant to subsection (f) hereof).
(f) Repayment with Foreign Currency Loans. On any day on which
a Borrower shall have requested, or been deemed to have requested, a
Foreign Currency Loan advance to reimburse
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a drawing under a Foreign Letter of Credit, the Agent shall give notice
to the Lenders that a Foreign Currency Loan has been requested or
deemed requested by such Borrower to be made in connection with a
drawing under a Foreign Letter of Credit, in which case a Foreign
Currency Loan advance shall be made to such Borrower by all Lenders on
the respective Reimbursement Date (notwithstanding any termination of
the Commitments pursuant to Section 9.2) pro rata based on the
respective Foreign Currency Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments
pursuant to Section 9.2) and the proceeds thereof shall be paid
directly to the Issuing Lender for application to the respective
Foreign LOC Obligations. Each such Lender hereby irrevocably agrees to
make its pro rata share of each such Foreign Currency Loan immediately
upon any such request or deemed request in the amount, in the manner
and on the date specified in the preceding sentence notwithstanding (i)
the amount of such borrowing may not comply with the minimum amount for
advances of Foreign Currency Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 5.2 are then satisfied,
(iii) whether a Default or an Event of Default then exists, (iv)
failure of any such request or deemed request for Foreign Currency
Loans to be made by the time otherwise required hereunder, (v) whether
the date of such borrowing is a date on which Foreign Currency Loans
are otherwise permitted to be made hereunder, (vi) any rights that such
Lender may have in respect of such Foreign Currency Loans under Section
3.7, or (vii) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the
event that any Foreign Currency Loan cannot for any reason be made on
the date otherwise required above (including, without limitation, as a
result of a Bankruptcy Event with respect to either Borrower or any
other Credit Party), then each such Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrowers or
the Guarantor on or after such date and prior to such purchase) from
the Issuing Lender in Pounds Sterling such participation in the
outstanding Foreign LOC Obligations as shall be necessary to cause each
such Lender to share in such Foreign LOC Obligations ratably (based
upon the respective Foreign Currency Commitment Percentages of the
Lenders (determined before giving effect to any termination of the
Commitments pursuant to Section 9.2)), provided that at the time any
purchase of participation pursuant to this sentence is actually made,
the purchasing Lender shall be required to pay to the Issuing Lender,
to the extent not paid to the Issuer by the Borrowers or the Guarantor
in accordance with the terms of subsection (d) above, interest on the
principal amount of participation purchased for each day from and
including the day upon which such borrowing would otherwise have
occurred to but excluding the date of payment for such participation,
at the rate equal to the Interim Foreign Currency Rate.
(g) Renewal, Extension. The renewal or extension of any
Foreign Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Foreign Letter of Credit
hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have
the Foreign Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue
by the International Chamber of Commerce (the "UCP"), in which case the
UCP may be incorporated therein and deemed in all respects to be a part
thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
---------------------------------------------------
(i) In addition to its other obligations under this
Section 2.2, each Borrower hereby agrees to pay, and protect,
indemnify and save each Lender (including the Issuing Lender)
harmless from and against, any and all claims, demands,
liabilities, damages,
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losses, costs, charges and expenses (including reasonable
attorneys' fees) that such Lender may incur or be subject to
as a consequence, direct or indirect, of (A) the issuance of
any Foreign Letter of Credit or (B) the failure of such Lender
to honor a drawing under a Foreign 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 government or
governmental authority (all such acts or omissions, herein
called "Government Acts").
(ii) As between the Borrowers and the Lenders
(including the Issuing Lender), the Borrowers shall assume all
risks of the acts, omissions or misuse of any Foreign Letter
of Credit by the beneficiary thereof. No Lender (including the
Issuing Lender) shall be responsible: (A) for the form,
validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the
application for and issuance of any Foreign Letter of Credit,
even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B)
for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any Foreign
Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) for 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; (D) for any loss
or delay in the transmission or otherwise of any document
required in order to make a drawing under a Foreign Letter of
Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of such
Lender, including, without limitation, any Government Acts.
None of the above shall affect, impair, or prevent the vesting
of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by any Lender (including the
Issuing Lender), under or in connection with any Foreign
Letter of Credit or the related certificates, if taken or
omitted in good faith, shall not put such Lender under any
resulting liability to the Borrowers or any other Credit
Party. It is the intention of the parties that this Credit
Agreement shall be construed and applied to protect and
indemnify each Lender (including the Issuing Lender) against
any and all risks involved in the issuance of the Foreign
Letters of Credit, all of which risks are hereby assumed by
the Borrowers (on behalf of itself and each of the other
Credit Parties), including, without limitation, any and all
Government Acts. No Lender (including the Issuing Lender)
shall, in any way, be liable for any failure by such Lender or
anyone else to pay any drawing under any Foreign Letter of
Credit as a result of any Government Acts or any other cause
beyond the control of such Lender.
(iv) Nothing in this subsection (i) is intended to
limit the reimbursement obligations of the Borrowers contained
in subsection (d) above. The obligations of the Borrowers
under this subsection (i) shall survive the termination of
this Credit Agreement. No act or omissions of any current or
prior beneficiary of a Foreign Letter of Credit shall in any
way affect or impair the rights of the Lenders (including the
Issuing Lender) to enforce any right, power or benefit under
this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (i), the Borrowers shall have no
obligation to indemnify any Lender (including the Issuing
Lender) in respect of any liability incurred by such Lender
(A) arising solely out of the
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gross negligence or willful misconduct of such Lender or (B)
caused by such Lender's unlawful failure to pay under any
Foreign Letter of Credit.
(j) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender
hereunder to the Lenders are only those expressly set forth in this
Credit Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.2 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that
nothing set forth in this Section 2.2 shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section
2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Foreign Letter of
Credit constituted gross negligence or willful misconduct on the part
of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document, this Credit
Agreement shall control.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
----------------------------------------------
3.1 Default Rate. Upon the occurrence, and during the continuance, of
an Event of Default, the principal of and, to the extent permitted by law,
interest on the Foreign Currency Loans and any other amounts owing hereunder or
under the other Credit Documents shall bear interest, payable on demand, at a
per annum rate 2% plus the rate which would otherwise be applicable.
3.2 Extension. Subject to the terms of Section 5.2, the Borrowers shall
have the option, on any Business Day, to extend existing Foreign Currency Loans
into a subsequent permissible Interest Period; provided, however, that (i)
Foreign Currency Loans may be extended only if no Default or Event of Default is
in existence on the date of extension, (ii) all Foreign Currency Loans shall be
subject to the terms of the definition of "Interest Period" set forth in Section
1.1 and shall be in such minimum amounts as provided in Section 2.1(b)(ii), and
(iii) no more than 5 separate Foreign Currency Loans shall be outstanding
hereunder at any time; provided, that for purposes hereof, Foreign Currency
Loans with different Interest Periods shall be considered as separate Foreign
Currency Loans, even if they begin on the same date, although borrowings and
extensions may, in accordance with the provisions hereof, be combined at the end
of existing Interest Periods to constitute a new Foreign Currency Loan with a
single Interest Period. Each such extension shall be effected by the appropriate
Borrower by giving a Notice of Extension (or telephonic notice promptly
confirmed in writing) to the office of the Agent specified in Section 3.13(b)
prior to 11:00 A.M. (London time) on the third Business Day prior to the date of
the proposed extension, specifying the date of the proposed extension, the
Foreign Currency Loans to be so extended and the applicable Interest Periods
with respect thereto. Each request for extension shall constitute a
representation and warranty by the Borrowers of the matters specified in
subsections (ii), (iii), (iv) and (v) of Section 5.2(a). In the event a Borrower
fails to request extension of any Foreign Currency Loan in accordance with this
Section, or any extension is not permitted or required by this Section, then
such Foreign Currency Loan shall be automatically continued as a Foreign
Currency Loan for an Interest Period of one month. The Agent shall give each
Lender notice as promptly as practicable of any such proposed extension
affecting any Foreign Currency Loan.
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3.3 Prepayments.
------------
(a) Voluntary Prepayments. The Borrowers shall have the right
to prepay Foreign Currency Loans in whole or in part from time to time
without premium or penalty; provided, however, that (i) Foreign
Currency Loans may only be prepaid on three Business Days' prior
written notice to the Agent and specifying the applicable Foreign
Currency Loans to be prepaid; (ii) any prepayment of Foreign Currency
Loans will be subject to Section 3.10; and (iii) each partial
prepayment of Foreign Currency Loans shall be in a minimum principal
amount of $1,000,000 (or the Foreign Currency Equivalent thereof) and
integral multiples of $1,000,000 (or the Foreign Currency Equivalent
thereof) in excess thereof. Subject to the foregoing terms, amounts
prepaid hereunder shall be applied as the prepaying Borrower may elect.
(b) Mandatory Prepayments.
----------------------
(i) If on any Determination Date, the sum of the Dollar
Amount of the aggregate Foreign Currency Loans outstanding plus the
Dollar Amount of Foreign LOC Obligations outstanding exceeds (as the
result of fluctuations in applicable foreign exchange rates or
otherwise) the then Foreign Currency Committed Amount, the Borrowers
promise to make a mandatory prepayment, in Pounds Sterling, of the
Foreign Currency Loans to the Agent in an aggregate Dollar Amount equal
to the excess of
(x) the amount equal to the sum of the Dollar Amount
of the aggregate Foreign Currency Loans outstanding plus the
Dollar Amount of Foreign LOC Obligations outstanding
over
(y) the Foreign Currency Committed Amount.
(c) General. All prepayments made pursuant to this Section 3.3
shall be subject to Section 3.10, shall be applied first to Foreign
Currency Loans in direct order, shortest to longest, of Interest Period
maturities and shall be accompanied by accrued interest on the
principal amount being prepaid to the date of prepayment and all other
amounts due and payable hereunder with respect to such Foreign Currency
Loans. Amounts prepaid may be reborrowed in accordance with the
provisions hereof.
3.4 Termination and Reduction of Foreign Currency Committed Amount.
--------------------------------------------------------------
(a) Voluntary Reductions. The Borrowers may from time to time
permanently reduce or terminate the Foreign Currency Committed Amount
in whole or in part (in minimum aggregate amounts of $1,500,000 or in
integral multiples of $750,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Foreign Currency Committed
Amount)) upon three Business Days' prior written notice to the Agent;
provided, however, no such termination or reduction shall be made which
would reduce the Foreign Currency Committed Amount to an amount less
than the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of outstanding
Foreign Currency Loans plus the Dollar Amount (as determined as of the
most recent Determination Date) of Foreign LOC Obligations outstanding.
The Agent shall promptly notify each of the Lenders of receipt by the
Agent of any notice from the Borrowers pursuant to this Section 3.4(a).
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(b) Termination Date. The Commitments of the Lenders and the
Issuing Lender shall automatically terminate on the Termination Date.
3.5 Letter of Credit Fees. Each Borrower shall pay to the Agent for the
account of the Lenders (based on their respective Pro Rata Shares of the Foreign
Letters of Credit), quarterly in arrears on or prior to the day ten (10) days
after the last day of each calendar quarter, a per annum fee equal to the
applicable Borrowing Margin for Eurodollar Rate Loans (calculated on the basis
of a year of 365 days, for actual days elapsed) of the average daily aggregate
amount available for drawing during the period from and including the first day
of such calendar quarter through the last day of such calendar quarter under all
outstanding commercial Foreign Letters of Credit requested by such Borrower and
a per annum fee equal to the applicable Borrowing Margin for Eurodollar Rate
Loans (calculated on the basis of a year of 365 days, for actual days elapsed)
of the average daily aggregate amount available for drawing during the period
from and including the first day of such calendar quarter through the last day
of such calendar quarter under all outstanding standby Foreign Letters of Credit
requested by such Borrower. In addition, each Borrower shall pay the standard
service charges for Foreign Letters of Credit issued from time to time by the
Issuing Lender including a facing fee of .125% of the face amount of each
Foreign Letter of Credit. Such additional fees shall be paid to the Issuing
Lender for its own account. All such fees shall be payable when due in
immediately available funds and shall be nonrefundable.
3.6 Capital Adequacy. If, after the date hereof, any Lender has
determined that the adoption or the becoming effective of, or any change in, or
any change by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof in the interpretation
or administration of, any applicable law, rule or regulation regarding capital
adequacy, or compliance by such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Lender's policies with respect to capital
adequacy), then, upon notice and detailed explanation from such Lender to the
applicable Borrower, such Borrower shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
Each determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto.
3.7 Unavailability.
---------------
(a) If prior to the first day of any Interest Period, the
Agent shall have determined (which determination shall be conclusive
and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurocurrency Rate for such Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders as soon as practicable thereafter. If such
notice is given, (A) any such Foreign Currency Loans requested to be
made on the first day of such Interest Period shall be deemed rescinded
and (B) any such Foreign Currency Loans shall be repaid in full by the
Borrowers on the first day of such Interest Period. Until such notice
has been withdrawn by the Agent, no further Foreign Currency Loans
shall be made or continued.
(b) If prior to the first day of any Interest Period, any
Lender shall inform the Agent that deposits in Pounds Sterling are not
available in the relevant market to any Lender, the Agent shall give
telecopy or telephonic notice thereof to the Borrowers and the Lenders
as soon as
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practicable thereafter. If such notice is given, (i) any Foreign
Currency Loans requested to be made on the first day of such Interest
Period shall be deemed rescinded and (ii) any outstanding Foreign
Currency Loans shall be repaid in full by the Borrowers on the first
day of such Interest Period. Until such notice has been withdrawn by
the Agent, no further Foreign Currency Loans shall be made or
continued.
(c) If prior to the issuance of any Foreign Letter of Credit,
the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that, with respect to the
requested Foreign Letter of Credit, Pounds Sterling in the amount of
any Lender's participation interest in such Foreign Letter of Credit is
not, and/or during the term of such Foreign Letter of Credit will not
be, available to any such Lender, then (i) the Agent shall notify the
Borrowers and the Lenders of such circumstances and (ii) the Issuing
Lender shall have no obligation to issue, and the Lenders shall have no
obligation to participate in, such Foreign Letter of Credit.
3.8 Requirements of Law. If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Foreign Letter of Credit, any Foreign
Currency Loans made by it or its obligation to make Foreign Currency
Loans, or change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes covered by Section 3.9
(including Non-Excluded Taxes imposed solely by reason of any failure
of such Lender to comply with its obligations under Section 3.9(b)) and
changes in taxes measured by or imposed upon the overall net income, or
franchise tax (imposed in lieu of such net income tax), of such Lender
or its applicable lending office, branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurocurrency Rate
hereunder; or
(c) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, continuing or
maintaining Foreign Currency Loans or issuing or participating in Foreign
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the applicable Borrower from
such Lender, through the Agent, in accordance herewith, the applicable Borrower
shall be obligated to promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall provide prompt notice thereof to
the applicable Borrower, through the Agent, certifying (x) that one of the
events described in this paragraph (a) has occurred and describing in reasonable
detail the nature of such event, (y) as to the increased cost or reduced amount
resulting from such event and (z) as
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to the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof. Such a certificate as to any additional
amounts payable pursuant to this subsection submitted by such Lender, through
the Agent, to a Borrower shall be conclusive and binding on the parties hereto
in the absence of manifest error. This covenant shall survive the termination of
this Credit Agreement and the payment of the Foreign Currency Loans and all
other amounts payable hereunder.
3.9 Taxes.
------
(a) Except as provided below in this subsection, all payments
made by a Borrower under this Credit Agreement and any Foreign Currency
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any court, or governmental body, agency or other official,
excluding taxes measured by or imposed upon the overall net income of
any Lender or its applicable lending office, or any branch or affiliate
thereof, and all franchise taxes, branch taxes, taxes on doing business
or taxes on the overall capital or net worth of any Lender or its
applicable lending office, or any branch or affiliate thereof, in each
case imposed in lieu of net income taxes, imposed: (i) by the
jurisdiction under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii)
by reason of any connection between the jurisdiction imposing such tax
and such Lender, applicable lending office, branch or affiliate other
than a connection arising solely from such Lender having executed,
delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Foreign Currency Notes. If any
such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Agent or any Lender hereunder
or under any Foreign Currency Notes, (A) the amounts so payable to the
Agent or such Lender shall be increased to the extent necessary to
yield to the Agent or such Lender (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Credit Agreement and any
Foreign Currency Notes, provided, however, that each Borrower shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of
paragraph (b) of this subsection whenever any Non-Excluded Taxes are
payable by a Borrower, and (B) as promptly as possible thereafter the
applicable Borrower shall send to the Agent for its own account or for
the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, such Borrower
shall indemnify the Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Agent or any
Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Credit Agreement and
the payment of the Foreign Currency Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X)(i) on or before the date of any payment by a
Borrower under this Credit Agreement or Foreign Currency Notes
to such Lender, deliver to the Borrowers and the
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Agent (A) two (2) duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is
entitled to receive payments under this Credit Agreement and
any Foreign Currency Notes without deduction or withholding of
any United States federal income taxes and (B) an Internal
Revenue Service Form W-8 or W-9, or successor applicable form,
as the case may be, certifying that it is entitled to an
exemption from United States backup withholding tax;
(ii) deliver to the Borrowers and the Agent two
(2) further copies of any such form or certification on or
before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrowers; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by the Borrowers or the Agent; or
(Y) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (i) represent to the Borrowers (for the
benefit of the Borrowers and the Agent) that it is not a bank
within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, (ii) agree to furnish to the Borrowers on or
before the date of any payment by the Borrowers, with a copy
to the Agent two (2) accurate and complete original signed
copies of Internal Revenue Service Form W-8, or successor
applicable form certifying to such Lender's legal entitlement
at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the
Internal Revenue Code with respect to payments to be made
under this Credit Agreement and any Foreign Currency Notes
(and to deliver to the Borrowers and the Agent two (2) further
copies of such form on or before the date it expires or
becomes obsolete and after the occurrence of any event
requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested
by the Borrower or the Agent for filing and completing such
forms), and (iii) agree, to the extent legally entitled to do
so, upon reasonable request by the Borrowers, to provide to
the Borrowers (for the benefit of the Borrowers and the Agent)
such other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an exemption
from withholding with respect to payments under this Credit
Agreement and any Foreign Currency Notes;
unless in any such case any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form with respect to it
and such Lender so advises the Borrowers and the Agent.
(c) Each Lender (other than any Qualifying Lender) shall, as
soon as is reasonably practicable after the Closing Date, file a form
FD 13 with the United States Internal Revenue Service in relation to
payments made or to be made by the Borrowers under this Credit
Agreement and any Foreign Currency Notes. If the United States Internal
Revenue Service determines that the form FD 13 filed by such Lender
does not establish that the Lender is entitled to receive payments made
by the Borrowers under this Credit Agreement and the Foreign Currency
Notes as at the date of delivery thereof without deduction or
withholding of United Kingdom withholding taxes, such Lender shall,
within forty-five (45) days after a written request from the Borrowers,
offer such
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reasonable assistance as the Borrowers may request in order to
establish such Lender's entitlement (if any) to receive payments made
by the Borrowers under this Credit Agreement and any Foreign Currency
Notes without deduction or withholding of United Kingdom withholding
taxes. No Borrower shall be required to pay any amounts to any Lender
in respect of any deduction or withholding of United Kingdom
withholding taxes otherwise payable under this Section 3.9 (and a
Borrower, if required by law to do so, shall be entitled to withhold
such amounts and pay such amounts to the government of the United
Kingdom) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Lender to provide the Borrowers
with the requested forms or other reasonable assistance.
(d) Each Person that shall become a Lender or a participant of
a Lender pursuant to Section 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this Section 3.9,
provided that in the case of a participant of a Lender the obligations
of such participant of a Lender pursuant to this subsection (b) shall
be determined as if the participant of a Lender were a Lender except
that such participant of a Lender shall furnish all such required
forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.10 Indemnity. Each Borrower promises to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur (other than through such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by such Borrower in making a
borrowing of, or continuation of, Foreign Currency Loans after such Borrower has
given a notice requesting the same in accordance with the provisions of this
Credit Agreement, (b) default by such Borrower in making any scheduled payment
of a Foreign Currency Loan or any prepayment of a Foreign Currency Loan after
such Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making by such Borrower of a prepayment of
Foreign Currency Loans on a day which is not the last day of an Interest Period
with respect thereto. Such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed or continued, for the period from the date
of such prepayment or of such failure to borrow or continue to the last day of
the applicable Interest Period (or, in the case of a failure to borrow or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Foreign
Currency Loans provided for herein (excluding, however, the Borrowing Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurocurrency market. The covenants of the Borrowers set
forth in this Section 3.10 shall survive the termination of this Credit
Agreement and the payment of the Foreign Currency Loans and all other amounts
payable hereunder.
3.11 Pro Rata Treatment. Except to the extent otherwise provided
herein:
(a) Loans. Each Foreign Currency Loan, each payment or
prepayment of principal of any Foreign Currency Loan or reimbursement
obligations arising from drawings under Foreign Letters of Credit, each
payment of interest on the Foreign Currency Loans or reimbursement
obligations arising from drawings under Foreign Letters of Credit, each
payment of the Foreign Letter of Credit fee (other than the fees
expressly for the own account of the Issuing Lender), each reduction of
the Foreign Currency Committed Amount and each extension of any Foreign
Currency Loan, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding
Foreign Currency Loans and Participation Interests.
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(b) Advances. Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its Foreign Currency Commitment
Percentage of such borrowing available to the Agent, the Agent may
assume that such Lender is making such amount available to the Agent,
and the Agent may, in reliance upon such assumption, make available to
the appropriate Borrower a corresponding amount. If such amount is not
made available to the Agent by such Lender within the time period
specified therefor hereunder, such Lender shall pay to the Agent, on
demand, such amount with interest thereon at a rate equal to the
Interim Foreign Currency Rate for the period until such Lender makes
such amount immediately available to the Agent. A certificate of the
Agent submitted to any Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest error.
If such Lender's Foreign Currency Commitment Percentage of such
borrowing is not made available to the Agent by such Lender within two
Business Days of the date of the related borrowing, the Agent shall
notify the Borrowers of the failure of such Lender to make such amount
available to the Agent and the Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to
Foreign Currency Loans hereunder), on demand, from the appropriate
Borrower.
3.12 Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any Foreign
Currency Loan, Foreign LOC Obligations or any other obligation owing to such
Lender under this Credit Agreement through the exercise of a right of setoff,
banker's lien or counterclaim, or pursuant to a secured claim under Section 506
of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, in excess of its pro rata share of such payment as provided for in
this Credit Agreement, such Lender shall promptly purchase from the other
Lenders a participation in such Foreign Currency Loans, Foreign LOC Obligations
and other obligations in such amounts, and make such other adjustments from time
to time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrowers agree that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Foreign Currency Loan, Foreign LOC Obligations or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or the Agent shall fail to remit to the Agent or
any other Lender an amount payable by such Lender or the Agent to the Agent or
such other Lender pursuant to this Credit Agreement on the date when such amount
is due, such payments shall be made together with interest thereon for each date
from the date such amount is due until the date such amount is paid to the Agent
or such other Lender at a rate per annum equal to the Interim Foreign Currency
Rate. If under any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a setoff to which this Section 3.12
applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders under this Section 3.12 to share in the benefits of any recovery on such
secured claim.
3.13 Payments, Computations, Etc.
----------------------------
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(a) Currency of Payments. Each payment on account of an amount
due from any Credit Party hereunder or under any other Credit Document
shall be made by such Credit Party to the Agent for the pro rata
account of the Lenders entitled to receive such payment as provided
herein in the currency in which such amount is denominated. Without
limiting the terms of the preceding sentence, accrued interest on any
Foreign Currency Loans and all fees owing with respect to Foreign
Letters of Credit shall be payable in Pounds Sterling. Upon request,
the Agent will give the Credit Parties a statement showing the
computation used in calculating such amount, which statement shall be
conclusive in the absence of manifest error. The obligation of each
Credit Party to make each payment on account of such amount in the
currency in which such amount is denominated shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment,
which is expressed in or converted into any other currency, except to
the extent such tender or recovery shall result in the actual receipt
by the Agent of the full amount in the appropriate currency payable
hereunder. Each Credit Party agrees that its obligation to make each
payment on account of such amount in the currency in which such amount
is denominated shall be enforceable as an additional or alternative
claim for recovery in such currency of the amount (if any) by which
such actual receipt shall fall short of the full amount of such
currency payable hereunder, and shall not be affected by judgment being
obtained for such amount.
(b) Place and Manner of Payments. Except as otherwise
specifically provided herein, all payments hereunder shall be made to
the Agent in immediately available funds, without offset, deduction,
counterclaim or withholding of any kind, prior to 2:00 P.M. (London
time) on the date due at the office of the Agent at ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or at such other place
as may be designated by the Agent to the Borrowers in writing. Payments
received after such time shall be deemed to have been received on the
next succeeding Business Day. The Agent may (but shall not be obligated
to) debit the amount of any such payment which is not made by such time
to any ordinary deposit account of the applicable Borrower maintained
with the Agent (with notice to the Borrowers). Each Borrower shall, at
the time it makes any payment under this Credit Agreement, specify to
the Agent the Foreign Currency Loans, Foreign LOC Obligations, fees,
interest or other amounts payable by such Borrower hereunder to which
such payment is to be applied (and in the event that it fails so to
specify, or if such application would be inconsistent with the terms
hereof, the Agent shall distribute such payment to the Lenders in such
manner as the Agent may determine to be appropriate in respect of
obligations owing by such Borrower hereunder, subject to the terms of
Section 3.11). The Agent will distribute such payments to such Lenders,
if any such payment is received prior to 12:00 Noon (Charlotte, North
Carolina time) on a Business Day in like funds as received prior to the
end of such Business Day and otherwise the Agent will distribute such
payment to such Lenders on the next succeeding Business Day. Whenever
any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and fees for
the period of such extension), except that if the extension would cause
the payment to be made in the next following calendar month, then such
payment shall instead be made on the next preceding Business Day.
Except as expressly provided otherwise herein, all computations of
interest and fees shall be made on the basis of actual number of days
elapsed over a year of 365 days. Interest shall accrue from and include
the date of borrowing, but exclude the date of payment.
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SECTION 4
GUARANTY
--------
4.1 The Guarantee. The Guarantor hereby guarantees to each Lender and
the Agent as hereinafter provided the prompt payment of the Borrowers'
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. The Guarantor hereby further
agrees that if any of the Borrowers' Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Guarantor will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Borrowers' Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) in accordance with the terms of such extension
or renewal.
4.2 Obligations Unconditional. The obligations of the Guarantor under
Section 4.1 are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Credit
Documents, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Borrowers' Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 4.2 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances. The Guarantor agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against either Borrower of
the Borrowers' Obligations for amounts paid under this Section 4 until such time
as the Lenders have been paid in full, all Commitments under this Credit
Agreement have been terminated and no Person or Governmental Authority shall
have any right to request any return or reimbursement of funds from the Lenders
in connection with monies received under the Credit Documents. Without limiting
the generality of the foregoing, it is agreed that, to the fullest extent
permitted by law, the occurrence of any one or more of the following shall not
alter or impair the liability of the Guarantor hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of
the Borrowers' Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any
of the Credit Documents or any other agreement or instrument referred
to therein shall be done or omitted;
(iii) the maturity of any of the Borrowers' Obligations shall
be accelerated, or any of the Borrowers' Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents or any other agreement or instrument referred to
therein shall be waived or any other guarantee of any of the Borrowers'
Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with; or
(iv) any of the Borrowers' Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of
any creditor of the Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of the
Guarantor).
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With respect to its obligations hereunder, the Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Agent or any Lender exhaust any right, power or
remedy or proceed against any Person under any of the Credit Documents or any
other agreement or instrument referred to therein, or against any other Person
under any other guarantee of, or security for, any of the Borrowers'
Obligations.
4.3 Reinstatement. The obligations of the Guarantor under this Section
4 shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Borrowers' Obligations
is rescinded or must be otherwise restored by any holder of any of the
Borrowers' Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Guarantor agrees that it will indemnify the
Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.5 Remedies. The Guarantor agrees that, to the fullest extent
permitted by law, as between the Guarantor, on the one hand, and the Agent and
the Lenders, on the other hand, the Borrowers' Obligations may be declared to be
forthwith due and payable as provided in Section 9.2 (and shall be deemed to
have become automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 4.1 notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Borrowers'
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Borrowers' Obligations
being deemed to have become automatically due and payable), the Borrowers'
Obligations (whether or not due and payable by any other Person) shall forthwith
become due and payable by the Guarantor for purposes of Section 4.1.
4.6 Continuing Guarantee. The guarantee in this Section 4 is a
continuing guarantee, and shall apply to all Borrowers' Obligations whenever
arising.
SECTION 5
CONDITIONS
----------
5.1 Closing Conditions. The obligation of the Lenders to enter into
this Credit Agreement and to make the initial Foreign Currency Loans or the
Issuing Lender to issue the initial Foreign Letter of Credit, whichever shall
occur first, shall be subject to satisfaction of the following conditions (in
form and substance acceptable to the Lenders):
(a) The Agent shall have received original counterparts of
this Credit Agreement executed by each of the parties hereto;
(b) The Agent shall have received appropriate original Foreign
Currency Notes for each Lender, executed by each Borrower;
(c) The Agent shall have received all documents it may
reasonably request relating to the existence and good standing of each
of the Credit Parties, the corporate or other necessary
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authority for and the validity of the Credit Documents, and any other
matters relevant thereto, all in form and substance reasonably
satisfactory to the Agent;
(d) The Agent shall have received a certificate executed by
the chief financial officer of the Borrowers as of the Closing Date
stating that immediately after giving effect to this Credit Agreement
and the other Credit Documents, (i) each Borrower on a consolidated
basis is Solvent, (ii) no Default or Event of Default exists and (iii)
the representations and warranties set forth in Section 6 are true and
correct in all material respects;
(e) The Agent shall have received a legal opinion of Weil,
Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Credit Parties, dated as of the
Closing Date and substantially in the form of Schedule 5.1(e);
(f) The acquisition of Flowers by UK Holdings shall have been
consummated on terms and conditions reasonably satisfactory to the
Agent; and
(g) The Agent shall have received such other documents,
agreements or information which may be reasonably requested by the
Agent (including, without limitation, an opinion of English counsel for
the Credit Parties, in form and substance reasonably satisfactory to
the Agent).
5.2 Conditions to all Extensions of Credit. The obligations of each
Lender to make or extend any Foreign Currency Loan and of the Issuing Lender to
issue or extend Foreign Letters of Credit (including the initial Foreign
Currency Loans and the initial Foreign Letter of Credit) are subject to
satisfaction of the following conditions in addition to satisfaction on the
Closing Date of the conditions set forth in Section 5.1:
(i) The applicable Borrower shall have delivered (A)
in the case of any Foreign Currency Loan, an appropriate
Notice of Borrowing or Notice of Extension or (B) in the case
of any Foreign Letter of Credit, the Issuing Lender shall have
received an appropriate request for issuance in accordance
with the provisions of Section 2.1(b) or of Section 2.2(b);
(ii) The representations and warranties set forth in
Section 6 shall be, subject to the limitations set forth
therein, true and correct in all material respects as of such
date (except for those which expressly relate to an earlier
date);
(iii) There shall not have been commenced against
either Borrower or the Guarantor an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or any case, proceeding or other action
for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such
Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;
(iv) No Default or Event of Default shall exist and
be continuing either prior to or after giving effect thereto;
and
(v) Immediately after giving effect to the making of
such Foreign Currency Loan (and the application of the
proceeds thereof) or to the issuance of such Foreign Letter
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of Credit, as the case may be, (A) the sum of the Dollar
Amount (as determined as of the most recent Determination
Date) of the aggregate principal amount of outstanding Foreign
Currency Loans plus the Dollar Amount (as determined as of the
most recent Determination Date) of Foreign LOC Obligations
outstanding shall not exceed the aggregate Foreign Currency
Committed Amount and (B) the aggregate principal amount of
outstanding WestPoint Loans plus WestPoint Letters of Credit
plus the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of
outstanding Foreign Currency Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of
Foreign LOC Obligations outstanding shall not exceed the Total
Commitments.
The delivery of each Notice of Borrowing, each Notice of Extension and each
request for a Foreign Letter of Credit pursuant to Section 2.1(b) or Section
2.2(b) shall constitute a representation and warranty by the requesting Borrower
of the correctness of the matters specified in subsections (ii), (iii), (iv),
and (v) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
------------------------------
The Credit Parties hereby represent to the Agent and each Lender that:
6.1 Organization; Existence; Compliance with Law. Each of the Credit
Parties (a) is a corporation duly organized, validly existing and is in good
standing under the laws of the jurisdiction of its incorporation or
organization, (b) has the corporate or other necessary power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign entity and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, other than in such
jurisdictions where the failure to be so qualified and in good standing would
not be reasonably expected to have a material adverse effect, and (d) is in
compliance with all material Requirements of Law.
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6.2 Power; Authorization; Enforceable Obligations. Each of the Credit
Parties has the corporate or other necessary power and authority, and the legal
right, to make, deliver and perform the Credit Documents to which it is a party,
and, in the case of the Borrowers, to obtain extensions of credit hereunder.
Each of the Credit Parties has taken all necessary corporate action to authorize
the borrowings and other extensions of credit on the terms and conditions of
this Credit Agreement and to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. No consent or authorization of,
filing with, notice to or other similar act by or in respect of, any
Governmental Authority or any other Person is required to be obtained or made by
or on behalf of any Credit Party in connection with the borrowings or other
extensions of credit hereunder or with the execution, delivery, performance,
validity or enforceability of the Credit Documents to which such Credit Party is
a party, except for consents, authorizations, notices and filings described in
Schedule 6.2, all of which have been obtained or made or have the status
described in such Schedule 6.2. This Credit Agreement has been, and each other
Credit Document to which any Credit Party is a party will be, duly executed and
delivered on behalf of the Credit Parties. This Credit Agreement constitutes,
and each other Credit Document to which any Credit Party is a party when
executed and delivered will constitute, a legal, valid and binding obligation of
such Credit Party enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.3 No Legal Bar. The execution, delivery and performance of the Credit
Documents by the Credit Parties, the borrowings or other extensions of credit
hereunder and the use of the proceeds thereof (a) will not violate any
Requirement of Law or contractual obligation of any Credit Party, (b) will not
result in, or require, the creation or imposition of any Lien on any of the
properties or revenues of any Credit Party pursuant to any such Requirement of
Law or contractual obligation, and (c) will not violate or conflict with any
provision of any Credit Party's articles of incorporation, charter, by-laws or
similar organizational documents (including, in the case of the Borrowers, their
Memorandum of Association and Articles of Association).
6.4 Governmental Regulations, Etc.
(a) No part of the Foreign Letters of Credit or proceeds of
the Foreign Currency Loans will be used, directly or indirectly, for
the purpose of purchasing or carrying any "margin stock" within the
meaning of Regulation G or Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by
any Lender or the Agent, each of the Borrowers will furnish to the
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form U-1 referred to in Regulation U. No
indebtedness being reduced or retired out of the proceeds of the
Foreign Currency Loans was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation
T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Borrowers. None of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of
the proceeds of the Foreign Currency Loans) will violate or result in a
violation of the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, or regulations issued pursuant
thereto, or Regulation G, T, U or X.
(b) Neither Borrower is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, neither
Borrower is (i) an "investment company" registered or required to be
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registered under the Investment Company Act of 1940, as amended, and is
not controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(c) This Credit Agreement and each Foreign Currency Note is in
proper legal form for the enforcement hereof or thereof against the
Borrowers, and to ensure the legality, validity, enforceability,
priority or admissibility in evidence of this Credit Agreement and the
Foreign Currency Notes it is not necessary that this Credit Agreement,
the Foreign Currency Notes or any other Credit Document be filed,
registered or recorded with, or executed or notarized before, any court
or other authority in the United Kingdom or that any registration
charge or stamp or similar tax be paid on or in respect of this Credit
Agreement, the Foreign Currency Notes or any other Credit Document.
6.5 Taxes. There are no income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, imposed, levied, collected,
withheld or assessed by any English court, or governmental body, agency or other
official either (a) on or by virtue of the execution or delivery of this Credit
Agreement, the Foreign Currency Notes or any other Credit Document or (b) on any
payment to be made by the Borrower under this Credit Agreement, the Foreign
Currency Notes or any other Credit Document.
SECTION 7
AFFIRMATIVE COVENANTS
---------------------
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
7.1 Incorporated Affirmative Covenants. Each Credit Party shall, and
the Guarantor shall cause each other Credit Party to, fully honor and perform
each of the affirmative covenants set forth in Section 5.1 of the WestPoint
Credit Agreement, each of which covenants are hereby expressly incorporated
herein by reference.
7.2 Financial Statements. Each Borrower will furnish, or cause to be
furnished, to the Agent:
(a) Annual Financial Statements. As soon as available, and in
any event within 95 days after the close of each fiscal year of UK
Holdings, a consolidated and consolidating balance sheet of UK Holdings
and its Subsidiaries, as of the end of such fiscal year, together with
related consolidated and consolidating statements of income, operations
and retained earnings and of cash flows for such fiscal year, setting
forth in comparative form consolidated and consolidating figures as of
the end of and for the preceding fiscal year, all such financial
information to be in form and detail reasonably satisfactory to the
Agent and such financial statements shall have been prepared in
accordance with GAAP, except as disclosed to the Lenders and accepted
by the Required Lenders. All such statements shall be accompanied by a
certificate of the chief financial officer of UK Holdings to the effect
that such annual financial statements fairly present in all material
respects the financial condition of and results of operations for UK
Holdings and its Subsidiaries and have been prepared in accordance with
GAAP, except as disclosed to the Lenders and accepted by the Required
Lenders.
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(b) Quarterly Financial Statements. As soon as available, and
in any event within 50 days after the close of each fiscal quarter of
each Borrower and its Subsidiaries (other than the fourth fiscal
quarter, in which case 95 days after the end thereof) a consolidated
and consolidating balance sheet of UK Holdings and its Subsidiaries, as
of the end of such fiscal quarter, together with related consolidated
and consolidating statements of income, operations and retained
earnings and of cash flows for such fiscal quarter in each case setting
forth in comparative form consolidated and consolidating figures for
the corresponding date or period of the preceding fiscal year, all such
financial information described above to be in reasonable form and
detail reasonably acceptable to the Agent, and accompanied by a
certificate of the chief financial officer of the UK Holdings to the
effect that such quarterly financial statements fairly present in all
material respects the financial condition of and results of operations
for UK Holdings and its Subsidiaries and have been prepared in
accordance with GAAP, except as disclosed to the Lenders and accepted
by the Required Lenders.
SECTION 8
NEGATIVE COVENANTS
------------------
Each Credit Party hereby covenants and agrees that, so long as this
Credit Agreement is in effect or any amounts payable hereunder or under any
other Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated, it shall, and the Guarantor shall cause each
other Credit Party to, fully honor and comply with each of the negative
covenants set forth in Section 5.2 of the WestPoint Credit Agreement, each of
which covenants are hereby expressly incorporated herein by reference; provided,
however, that, on or prior to the Closing Date, the Borrowers shall be permitted
to enter into any sale and leaseback transaction related to the acquisition of
Flower by UK Holdings.
SECTION 9
EVENTS OF DEFAULT
-----------------
9.1 Events of Default. An Event of Default shall exist upon the
occurrence of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal
of any of the Foreign Currency Loans or of any reimbursement
obligations arising from drawings under Foreign Letters of
Credit, or
(ii) default, and such default shall continue for
five (5) or more days, in the payment when due of any interest
on the Foreign Currency Loans or on any reimbursement
obligations arising from drawings under Foreign Letters of
Credit, or of any fees or other amounts owing hereunder, under
any of the other Credit Documents or in connection herewith or
therewith; or
(b) Guaranty. The guaranty given by the Guarantor hereunder or
any provision thereof shall cease to be in full force and effect, or
the Guarantor shall deny or
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disaffirm such Guarantor's obligations under such guaranty, or the
Guarantor shall default in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed
pursuant to any guaranty (including Section 4 hereof); or
(c) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was deemed to have
been made; or
(d) Bankruptcy Event. Any Bankruptcy Event shall occur with
respect to any Credit Party; or
(e) Ownership. The Guarantor shall cease to own directly or
indirectly all of the outstanding capital stock of either of the
Borrowers; or
(f) Incorporated Events of Default. There shall occur and be
continuing any Event of Default under and as defined in the WestPoint
Credit Agreement.
9.2 Acceleration; Remedies. Upon the occurrence of an Event of Default,
and at any time thereafter unless and until such Event of Default has been
waived by the requisite Lenders (pursuant to the voting conditions of Section
11.6) or cured to the satisfaction of the requisite Lenders (pursuant to the
voting procedures in Section 11.6), the Agent shall, upon the request and
direction of the Required Lenders, by written notice to the Credit Parties take
any of the following actions without prejudice to the rights of the Agent or any
Lender to enforce its claims against the Credit Parties, except as otherwise
specifically provided for herein:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Foreign Currency Loans, any
reimbursement obligations arising from drawings under Foreign Letters
of Credit and any and all other indebtedness or obligations of any and
every kind owing by the Borrowers to any of the Lenders hereunder to be
due whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each of the Borrowers.
(iii) Cash Collateral. Direct (A) the Borrowers to pay to the
Agent additional cash, to be held by the Agent, for the benefit of the
Lenders, in a cash collateral account as additional security for the
Foreign LOC Obligations in respect of subsequent drawings under all
then outstanding Foreign Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all Foreign Letters
of Credits then outstanding.
(iv) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents and all
rights of set-off.
Notwithstanding the foregoing, if a Bankruptcy Event shall occur with
respect to any Credit Party, then the Commitments shall automatically terminate
and all Foreign Currency Loans, all reimbursement obligations arising from
drawings under Foreign Letters of Credit, all accrued interest in respect
thereof, all
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accrued and unpaid fees and other indebtedness or obligations owing to the
Lenders hereunder automatically shall immediately become due and payable without
the giving of any notice or other action by the Agent.
SECTION 10
AGENCY PROVISIONS
-----------------
Each of the terms, conditions, and provisions of Article VIII of the
WestPoint Credit Agreement are hereby expressly incorporated herein by reference
and applied with equal force to this Credit Agreement, including without
limitation the appointment of the Agent, the rights of indemnification,
resignation of the Agent, and the nature of the duties of the Agent. Any
successor Agent appointed pursuant to Article VIII of the WestPoint Credit
Agreement shall automatically replace and succeed the Agent hereunder.
SECTION 11
MISCELLANEOUS
-------------
11.1 Notices. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number set out below, (iii) the Business Day following
the day on which the same has been delivered prepaid to a reputable national
overnight air courier service, or (iv) the third Business Day following the day
on which the same is sent by certified or registered mail, postage prepaid, in
each case to the respective parties at the address, in the case of the
Borrowers, the Guarantor and the Agent, set forth below, and, in the case of the
Lenders, set forth on Schedule 2.1(a), or at such other address as such party
may specify by written notice to the other parties hereto:
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if to the Borrowers or the Guarantor:
WestPoint ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Legal Department at the above address.
if to the Agent:
NationsBank, N.A.
NationsBank Corporate Center, 8th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
11.2 Right of Set-Off. Subject to Section 3.12, in addition to any
rights now or hereafter granted under applicable law or otherwise, and not by
way of limitation of any such rights, upon the occurrence of an Event of Default
which is continuing, unremedied and unwaived, each Lender is authorized at any
time and from time to time, without presentment, demand, protest or other notice
of any kind (all of which rights being hereby expressly waived), to set off and
to appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Credit Party to such Lender hereunder, under the Foreign
Currency Notes, under the other Credit Documents or otherwise, irrespective of
whether such Lender shall have made any demand hereunder and although such
obligations, liabilities or claims of such Lender to such Credit Party, or any
of them, may be contingent or unmatured, and any such set-off shall be deemed to
have been made immediately upon the occurrence of an Event of Default even
though such charge is made or entered on the books of such Lender subsequent
thereto. Each of the Credit Parties hereby agrees that any Person purchasing a
participation in the Foreign Currency Loans and Commitments hereunder pursuant
to Section 11.3(c) or Section 3.12 may exercise all rights of set-off with
respect to its participation interest as fully as if such Person were a Lender
hereunder.
11.3 Benefit of Agreement.
---------------------
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the Credit
Parties may assign and transfer any of its interests or obligations
without prior written consent of the Lenders; provided further that the
rights of each Lender to transfer, assign or grant participations in
its rights and/or obligations hereunder shall be limited as set forth
in this Section 11.3, provided however that nothing herein shall
prevent or prohibit any Lender from (i) pledging its Foreign Currency
Loans hereunder to a Federal Reserve Bank in support of
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borrowings made by such Lender from such Federal Reserve Bank, or (ii)
granting assignments or participations in such Lender's Foreign
Currency Loans and/or Commitments hereunder to its parent company
and/or to any affiliate of such Lender which is at least 50% owned by
such Lender or its parent company.
(b) Assignments. Each Lender may, with the prior written
consent of the Borrowers and the Agent, which consent shall not be
unreasonably withheld or delayed (provided that no consent shall be
required during the existence and continuation of an Event of Default),
assign all or a portion of its rights and obligations hereunder
pursuant to an assignment agreement substantially in the form of
Exhibit 11.3(b) to one or more Eligible Assignees; provided that (i)
any such assignment shall be in a minimum aggregate amount of
$2,000,000 (or, if less, the remaining amount of the Commitment being
assigned by such Lender) and in integral multiples of $1,000,000 above
such amount, (ii) each such assignment shall be of a constant, not
varying, percentage of all of the assigning Lender's rights and
obligations under the Commitment being assigned, and (iii) any such
assignment is accompanied by an assignment by such Lender to such
Eligible Assignee(s) of an equal percentage of all of the assigning
Lender's rights, obligations and commitments under the WestPoint Credit
Agreement. Any assignment hereunder shall be effective upon
satisfaction of the conditions set forth above and delivery to the
Agent of a duly executed assignment agreement together with a transfer
fee of $3,500 payable to the Agent for its own account. Upon the
effectiveness of any such assignment, the assignee shall become a
"Lender" for all purposes of this Credit Agreement and the other Credit
Documents and, to the extent of such assignment, the assigning Lender
shall be relieved of its obligations hereunder to the extent of the
Foreign Currency Loans and Commitment components being assigned. Along
such lines each Borrower agrees that upon notice of any such assignment
and surrender of the appropriate Foreign Currency Note or Foreign
Currency Notes, it will promptly provide to the assigning Lender and to
the assignee separate Foreign Currency Notes substantially in the form
of the original Foreign Currency Note or Foreign Currency Notes (but
with notation thereon that it is given in substitution for replacement
notes thereof).
(c) Participations. Each Lender may sell, transfer, grant or
assign participations in all or any part of such Lender's interest and
obligations hereunder; provided that (i) such selling Lender shall
remain a "Lender" for all purposes under this Credit Agreement (such
selling Lender's obligations under the Credit Documents remaining
unchanged) and the participant shall not constitute a Lender hereunder,
(ii) no such participant shall have, or be granted, rights to approve
any amendment or waiver relating to this Credit Agreement or the other
Credit Documents except to the extent any such amendment or waiver
would (A) reduce the principal of or rate of interest on or in respect
of any Foreign Currency Loans or any Foreign LOC Obligations or any
fees in which such participant is participating, (B) postpone the date
fixed for any payment of principal (including extension of the
Termination Date or the date of any mandatory prepayment), interest or
fees in which such participant is participating, or (C) release all or
substantially all of the collateral or guaranties (except as expressly
provided in the Credit Documents) supporting any of the Foreign
Currency Loans, Foreign LOC Obligations or Commitments in which such
participant is participating, (iii) sub-participations by such
participant (except to an Affiliate, parent company or Affiliate of a
parent company of such participant) shall be prohibited and (iv) any
such participations shall be in a minimum aggregate amount of
$1,000,000 (or, if less, the remaining amount of the Commitment being
participated by such Lender) of the Commitments and in integral
multiples of $1,000,000 in excess thereof. In the case of any such
participation, such participant shall not have any rights under this
Credit Agreement or the other Credit Documents (such participant's
rights against the selling Lender in respect of such participation to
be those set forth in
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the participation) and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation.
11.4 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Agent or any Lender in exercising any right, power or privilege hereunder or
under any other Credit Document and no course of dealing between any of the
Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle the Borrowers or any other
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 Payment of Expenses, etc. Each Borrower agrees to: (i) pay all
reasonable out-of-pocket costs and expenses of the Agent in connection with the
negotiation, preparation, execution and delivery and administration of this
Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, special counsel to the Agent) and any
amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the
Credit Parties under this Credit Agreement and of the Agent and the Lenders in
connection with enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, in connection
with any such enforcement, the reasonable fees and disbursements of counsel for
the Agent and each of the Lenders); (ii) pay and hold each of the Lenders
harmless from and against any and all present and future stamp and other similar
taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such
Lender) to pay such taxes; and (iii) indemnify each Lender, its officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not any Lender is a party thereto) related to the entering into and/or
performance of any Credit Document or the use of proceeds of any Foreign
Currency Loans (including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Credit Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 Amendments, Waivers and Consents. Neither this Credit Agreement
nor any other Credit Document nor any of the terms hereof or thereof may be
amended, changed, waived, discharged or terminated unless such amendment,
change, waiver, discharge or termination is in writing entered into by, or
approved in writing by, the Required Lenders, provided that no such amendment,
change, waiver, discharge or termination shall, without the consent of each
Lender, (i) extend the scheduled maturities (including the final maturity and
any mandatory prepayments) of any Foreign Currency Loan, or any portion thereof,
or reduce the rate or extend the time of payment of interest (other than as a
result of waiving the applicability of any post-default increase in interest
rates) thereon or fees hereunder or reduce the principal amount thereof, or
increase the Commitments of the Lenders over the amount thereof in effect (it
being understood and agreed that a waiver of any Default or Event of Default or
of a mandatory
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reduction in the total Commitments shall not constitute a change in the terms of
any Commitment of any Lender), (ii) release the Guarantor from its guaranty
obligations hereunder (except as expressly provided in the Credit Documents),
(iii) amend, modify or waive any provision of this Section or Section 3.6, 3.9,
3.10, 3.11, 3.12, 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.1, 5.2, 9.1, 9.2, 11.2, 11.3,
11.5 or 11.9, (iv) reduce any percentage specified in, or otherwise modify, the
definition of "Foreign Currency Equivalent," "Determination Date," "Dollar
Amount," "Dollar Equivalent," or "Required Lenders" or (v) consent to the
assignment or transfer by any Borrower or the Guarantor of any of its rights and
obligations under (or in respect of) this Credit Agreement or any other Credit
Document. No provision of Section 2.2 may be amended without the consent of the
Issuing Lender, and no provision of Section 10 may be amended without the
consent of the Agent.
11.7 Counterparts. This Credit Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Credit Agreement to produce or
account for more than one such counterpart.
11.8 Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Credit Agreement.
11.9 Survival of Indemnification. All indemnities set forth herein,
including, without limitation, in Section 2.2(i), 3.9, 3.10, or 11.5 shall
survive the execution and delivery of this Credit Agreement, and the making of
the Foreign Currency Loans, the issuance of the Foreign Letters of Credit, the
repayment of the Foreign Currency Loans, Foreign LOC Obligations and other
obligations under the Credit Documents and the termination of the Commitments
hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue; Arbitration.
--------------------------------------------------------------
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be
brought in the courts of the State of North Carolina in Mecklenburg
County, or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit Agreement, each
of the Credit Parties hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of such courts. Each of the Credit Parties further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to
it at the address set out for notices pursuant to Section 11.1, such
service to become effective 30 days after such mailing. Nothing herein
shall affect the right of the Agent or any Lender to serve process in
any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against any Credit Party in any other
jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
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(c) TO THE EXTENT PERMITTED BY LAW, THE AGENT, EACH OF THE
LENDERS AND EACH OF THE CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER
CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(d) (i) Without limiting the generality of subsections (a),
(b) and (c) of this Section 11.10, each Borrower agrees that
any controversy or claim with respect to it arising out of or
relating to this Credit Agreement or any of the other Credit
Documents may, at the option of the Agent and the Lenders, be
settled immediately by submitting the same to binding
arbitration in Charlotte, North Carolina (or such other place
as the parties may agree) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association.
Upon the request and submission of any controversy or claim
for arbitration hereunder, the Agent shall give the Borrowers
not less than 45 days written notice of the request for
arbitration, the nature of the controversy or claim, and the
time and place set for arbitration. Each Borrower agrees that
such notice is reasonable to enable it sufficient time to
prepare and present its case before the arbitration panel.
Judgment on the award rendered by the arbitration panel may be
entered in any court in which any action could have been
brought or maintained, including without limitation any court
of the State of North Carolina in Mecklenburg County, or of
the United States for the Western District of North Carolina.
The expenses of arbitration shall be paid by the Borrowers.
(ii) The provisions of subsection (d)(i) above are
intended to comply with the requirements of the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards
(the "Convention"). To the extent that any provisions of such
subsection (d)(i) are not consistent with or fail to conform
to the requirements set out in the Convention, such subsection
(d)(i) shall be deemed amended to conform to the requirements
of the Convention.
(iii) Each Borrower hereby specifically consents and
submits to the jurisdiction of the courts of the State of
North Carolina in Mecklenburg County, or of the United States
for the Western District of North Carolina, for purposes of
entry of a judgment or arbitration award entered by the
arbitration panel.
(iv) The Borrowers hereby irrevocably appoint
Corporation Service Network, with an address on the date
hereof at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Domestic Process Agent"), as process agent in its name, place
and stead to receive and forward service of any and all writs,
summonses and other legal process in any suit, action or
proceeding brought in the State of North Carolina, agree that
such service in any such suit, action or proceeding may be
made upon the Domestic Process Agent and agree to take all
such action as may be necessary to continue said appointment
in full force and effect or to appoint another agent so that
the Borrowers will at all times have an agent in the State of
North Carolina for service of process for the above purposes.
11.11 Severability. If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
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11.12 Entirety. This Credit Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.13 Survival of Representations and Warranties. All representations
and warranties made by the Credit Parties herein shall survive delivery of the
Foreign Currency Notes and the making of the Foreign Currency Loans and the
issuance of the Foreign Letters of Credit hereunder.
11.14 Binding Effect; Termination of Credit Agreement.
------------------------------------------------
(a) This Credit Agreement shall become effective at such time
on or after the Closing Date when it shall have been executed by the
Borrowers, the Guarantor and the Agent, and the Agent shall have
received copies hereof (telefaxed or otherwise) which, when taken
together, bear the signatures of each Lender, and thereafter this
Credit Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Guarantor, the Agent and each Lender and their
respective successors and assigns.
(b) The term of this Credit Agreement shall be until no
Foreign Currency Loans, Foreign LOC Obligations or any other amounts
payable hereunder or under any of the other Credit Documents shall
remain outstanding and until all of the Commitments hereunder shall
have expired or been terminated.
11.15 Judgment Currency.
------------------
(a) Each Credit Party's obligations hereunder to make payments
in Dollars or in Pounds Sterling (the "Obligation Currency") shall not
be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the
Obligation Currency, except to the extent that such tender or recovery
results in the effective receipt by the Agent or a Lender of the full
amount of the Obligation Currency expressed to be payable to the Agent
or such Lender under this Credit Agreement. If, for the purpose of
obtaining or enforcing judgment against any Credit Party in any court
or in any jurisdiction, it becomes necessary to convert into or from
any currency other than the Obligation Currency (such other currency
being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the Dollar
Equivalent or the Foreign Currency Equivalent, as applicable,
determined in each case as of the Business Day immediately preceding
the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, such amount payable by the applicable Credit
Party shall be reduced or increased, as applicable, such that the
amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of
the Obligation Currency which could have been purchased with the amount
of Judgment Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgment Currency Conversion
Date.
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[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWERS: WESTPOINT ▇▇▇▇▇▇▇ (UK) LIMITED
---------
By
--------------------------------
Title
-----------------------------
▇.▇. FLOWER & CO. LIMITED
By
--------------------------------
Title
-----------------------------
GUARANTOR: WESTPOINT ▇▇▇▇▇▇▇ INC.
---------
By
--------------------------------
Title
-----------------------------
[Signatures Continue]
S-1
40
LENDERS: NATIONSBANK, N.A.,
------- individually in its capacity as a
Lender and in its capacity as Agent
Foreign Currency Commitment Percentage: By
13.141631325% ---------------------------------
Name
-------------------------------
Title
------------------------------
Address:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1-007-08-11
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK
Foreign Currency Commitment Percentage: By
13.141631342% ---------------------------------
Name
-------------------------------
Title
------------------------------
Address:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continue]
S-2
41
THE FIRST NATIONAL BANK OF BOSTON
Foreign Currency Commitment Percentage: By
13.141631342% ---------------------------------
Name
-------------------------------
Title
------------------------------
Address:
The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
THE FIRST NATIONAL BANK OF CHICAGO
Foreign Currency Commitment Percentage: By
14.285714288% ---------------------------------
Name
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Title
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Address:
The First National Bank of Chicago
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Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continue]
S-3
42
THE NIPPON CREDIT BANK, LTD.
Foreign Currency Commitment Percentage: By
13.141631342% ---------------------------------
Name
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Title
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Address:
The Nippon Credit Bank, Ltd.
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Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK OF GEORGIA, N.A.
Foreign Currency Commitment Percentage: By
14.285714288% ---------------------------------
Name
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Title
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Address:
Wachovia Bank of Georgia, N.A.
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Attn: Commercial Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continue]
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▇▇▇▇▇▇▇ Currency Commitment Percentage: By
9.995403241% ---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By
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Name
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Title
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Address:
SunTrust Bank, Atlanta
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Mail Code 126
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Attn: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
AMSOUTH BANK OF ALABAMA
Foreign Currency Commitment Percentage: By
4.290311048% ---------------------------------
Name
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Title
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Address:
AmSouth Bank of Alabama
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Attn: ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continue]
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ABN AMRO BANK, N.V., ATLANTA AGENCY
Foreign Currency Commitment Percentage: By
4.576331784% ---------------------------------
Name
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Title
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By
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Name
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Title
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Address:
ABN AMRO Bank, N.V.
Atlanta Agency
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
S-6
45
SCHEDULE 1.1A
-------------
CALCULATION OF THE MLA COST
(a) The MLA Cost for any Foreign Currency Loan made by any Lender is
calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
---------------------
100 - (B+S)
where on the day of application of the formula:
B is the percentage of such Lender's eligible liabilities which
the Bank of England requires such Lender to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the interest rate applicable to such Foreign Currency Loan;
L is the percentage of eligible liabilities which the Bank of
England requires such Lender to maintain as secured money with
members of the London Discount Market Association and/or as
secured call money with certain money brokers and gilt-edged
primary market makers;
X is the rate at which secured Pounds Sterling deposits in the
relevant amount may be placed by such Lender with members of
the London Discount Market Association and/or as secured call
money with certain money brokers and gilt-edged primary market
makers at or about 11:00 a.m. on that day for the relevant
period;
S is the percentage of such Lender's eligible liabilities which
the Bank of England requires such Lender to place as a special
deposit; and
Z is the interest rate per annum allowed by the Bank of England
on special deposits.
(b) For the purposes of this Schedule 1.1A:
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England;
(ii) "relevant period" means:
(A) in relation to any Foreign Currency Loan bearing
interest on the basis of the Eurocurrency Rate, (1)
if its Interest Period is 3 months or less, that
Interest Period and (2) if its Interest Period is
more than three months, each successive period of
three months and any necessary shorter period
comprised in that Interest Period; or
(B) in relation to any Foreign Currency Loan bearing
interest on the basis of the Interim Foreign Currency
Rate, each day that such Foreign Currency Loan is
outstanding.
46
(c) In application of the formula, B, Y, L, X, S and Z are
included in the formula as figures and not as percentages,
e.g. if B=0.5% and Y=15%, BY is calculated as 0.5 x 15.
(d) (i) The formula is applied (A) in relation to any Foreign
Currency Loan bearing interest on the basis of the
Eurocurrency Rate, on the first day of each Interest
Period of such Foreign Currency Loan and (B) in
relation to any Foreign Currency Loan bearing
interest on the basis of the Interim Foreign Currency
Rate, on each day.
(ii) Each rate calculated in accordance with the formula
is, if necessary, rounded upward to four decimal
places.
(e) If the Agent determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the Agent
shall notify the Borrower of the manner in which the MLA Cost
will subsequently be calculated. The manner of calculation so
notified by the Agent shall, in the absence of manifest error,
be binding on all the parties.
47
SCHEDULE 1.1B
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FORM OF NOTICE OF BORROWING
NationsBank, N.A.,
as Agent for the Lenders
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▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
The undersigned, [WestPoint ▇▇▇▇▇▇▇ (U.K.) Limited] or [▇.▇. Flower &
Co. Limited] refers to the Credit Agreement dated as of January 23, 1997 (as it
may be amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrowers, the other Credit Parties party thereto, the
Lenders party thereto and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice that it requests a Foreign
Currency Loan advance in accordance with the provisions of Section 2.1 of the
Credit Agreement and in connection therewith sets forth below the terms on which
such Foreign Currency Loan advance is requested to be made:
(A) Date of Borrowing
(which is a Business Day) _______________________
(B) Principal Amount of
Borrowing _______________________
(C) Interest Period and the
last day thereof _______________________
The delivery of this Notice of Borrowing shall constitute a
representation and warranty by the undersigned of the correctness of the matters
specified in subsections (ii), (iii), (iv), and (v) of Sections 5.2.
Very truly yours,
[WESTPOINT ▇▇▇▇▇▇▇ (U.K.) LIMITED]
[▇.▇. FLOWER & CO. LIMITED]
By:
Title:
48
SCHEDULE 1.1C
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FORM OF NOTICE OF EXTENSION
NationsBank, N.A.,
as Agent for the Lenders
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▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
The undersigned, [WestPoint ▇▇▇▇▇▇▇ (U.K.) Limited] [▇.▇. Flower & Co.
Limited], refers to the Credit Agreement dated as of January 23, 1997 (as
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrowers, the other Credit Parties party thereto, the
Lenders and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives notice pursuant to Section 3.2 of the
Credit Agreement that it requests an extension of a Foreign Currency Loan
outstanding under the Credit Agreement, and in connection herewith sets forth
below the terms on which such extension is requested to be made:
(A) Date of Extension
(which is the last day of the
the applicable Interest Period) _______________________
(B) Principal Amount of
Extension _______________________
(C) Interest Period and the
last day thereof _______________________
The delivery of this Notice of Extension shall constitute a
representation and warranty by the undersigned of the correctness of the matters
specified in subsections (ii), (iii), (iv), and (v) of Sections 5.2.
Very truly yours,
[WESTPOINT ▇▇▇▇▇▇▇ (U.K.) LIMITED]
[▇.▇. FLOWER & CO. LIMITED]
By:
Title:
49
SCHEDULE 2.5(E)
---------------
FORM OF
FOREIGN CURRENCY NOTE
January 23, 1997
FOR VALUE RECEIVED, [WESTPOINT ▇▇▇▇▇▇▇ (UK) LIMITED] [▇.▇. FLOWER & CO.
LIMITED], a limited liability company incorporated in England (the "Borrower"),
hereby promises to pay to the order of __________________________, its
successors and assigns (the "Lender"), at the office of NationsBank, N.A., as
Agent (the "Agent"), at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ECM
12H (or at such other place or places as the holder hereof may designate), at
the times set forth in the Credit Agreement, dated as of January 23, 1997, among
the Borrower, [WestPoint ▇▇▇▇▇▇▇ (UK) Limited/▇.▇. Flower & Co.], WestPoint
▇▇▇▇▇▇▇ Inc., the Lenders and the Agent (as it may be amended, modified,
extended or restated from time to time, the "Credit Agreement"; all capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Credit Agreement), but in no event later than the Termination Date, the
aggregate unpaid principal amount of all Foreign Currency Loans made by the
Lender to the Borrower pursuant to the Credit Agreement, and to pay interest
from the date hereof on the unpaid principal amount hereof at said place and
account, on the dates and at the rate in accordance with Section 2.1(d) of the
Credit Agreement. Each payment on account of an amount due from the Borrower
hereunder shall be made in Pounds Sterling at the place and time of payment set
forth in Section 3.13(b) of the Credit Agreement. Without limiting the terms of
the preceding sentence, accrued interest on any Foreign Currency Loan shall be
payable in Pounds Sterling.
Upon the occurrence and during the continuance of an Event of Default
the balance outstanding hereunder shall bear interest as provided in Section 3.1
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Foreign
Currency Note, and all other indebtedness of the Borrower to the Lender shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
In the event this Foreign Currency Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorneys'
fees.
All borrowings evidenced by this Foreign Currency Note and all payments
and prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder hereof on Schedule A attached
hereto and incorporated herein by reference, or on a continuation thereof which
shall be attached hereto and made a part hereof; provided, however, that any
failure to endorse such information on such schedule or continuation thereof
shall not in any manner affect the obligation of the Borrower to make payments
of principal and interest in accordance with the terms of this Foreign Currency
Note.
THIS FOREIGN CURRENCY NOTE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
50
IN WITNESS WHEREOF, the Borrower have caused this Foreign Currency Note
to be duly executed by its duly authorized officer as of the day and year first
above written.
[WESTPOINT ▇▇▇▇▇▇▇ (UK) LIMITED]
[▇.▇. FLOWER & CO. LIMITED]
By
-------------------------------------
Title
----------------------------------
51
SCHEDULE A TO THE
FOREIGN CURRENCY NOTE
DATED JANUARY 23, 1997
Unpaid Name of
Principal Person
Interest Payments Balance Making
Date Period Principal Interest of Note Notation
---- ------ --------- -------- ------- --------