EXHIBIT 99.1
INTERCREDITOR AGREEMENT
dated as of October 6, 2000
among
THE WARNACO GROUP, INC.,
WARNACO INC.,
THE OTHER SUBSIDIARIES OF THE WARNACO GROUP, INC.
PARTY HERETO,
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
THE BANK OF NOVA SCOTIA and SALOMON SMITH BARNEY INC.,
as Lead Arrangers,
THE BANK OF NOVA SCOTIA and CITIBANK, N.A.,
as Debt Coordinators,
THE BANK OF NOVA SCOTIA,
SALOMON SMITH BARNEY INC.,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
COMMERZBANK A.G., NEW YORK BRANCH,
and
SOCIETE GENERALE,
as Arrangers,
SOCIETE GENERALE,
as Security Agent,
THE OTHER FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
and
STATE STREET BANK AND TRUST COMPANY,
as COLLATERAL TRUSTEE
TABLE OF CONTENTS
SECTION PAGE
Article I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions......................................................1
SECTION 1.2. Accounting Terms.................................................1
Article II
INTERCREDITOR ARRANGEMENTS
SECTION 2.1. Application of Prepayments, Other Amounts and
Commitment Reductions.......................................2
SECTION 2.2. Amendments of Loan Documents; CertainAmendments Under
Covered Facilities.........................................4
SECTION 2.3. Defaults.........................................................6
SECTION 2.4. New Facilities; Designated Capital Markets Transactions..........7
SECTION 2.5. Other Actions....................................................7
Article III
WAIVER
SECTION 3.1. Waiver...........................................................8
Article IV
CONDITIONS OF EFFECTIVENESs
SECTION 4.1. Conditions of Effectiveness......................................8
Article V
COLLATERAL TRUSTEE; SECURITY AGENT
SECTION 5.1. Authorization and Action.........................................9
Article VI
THE AGENTS
SECTION 6.1. Authorization and Action........................................10
SECTION 6.2. Administrative Agent; Debt Coordinators;
Collateral Trustee; Security Agent..............................11
SECTION 6.3. Agents' Reliance, Etc...........................................12
SECTION 6.4. Scotiabank, SSBI, Citibank, Commerzbank, Morgan, SG ,
State Street Bank and Trust Company and Affiliates..............12
SECTION 6.5. Lender Party Decision...........................................12
SECTION 6.6. Indemnification.................................................13
SECTION 6.7. Successor Agents................................................13
SECTION 6.8. No Knowledge of Defaults........................................13
Article VII
SPECIAL PROVISIONS CONCERNING FOREIGN JURISDICTIONS
SECTION 7.1. Joint Creditorship..............................................14
SECTION 7.2. Declaration of Trust (Treuhand) and
Appointment as Administrator....................................14
SECTION 7.3. Quebec Security.................................................14
Article VIII
MISCELLANEOUS
SECTION 8.1. Notices, Etc....................................................16
SECTION 8.2. No Waiver; Remedies.............................................16
SECTION 8.3. Costs and Expenses..............................................16
SECTION 8.4. Register; Cash Management Register..............................17
SECTION 8.5. Execution in Counterparts.......................................18
SECTION 8.6. Binding Effect; Novation........................................18
SECTION 8.7. Jurisdiction, Process Agent, Judgment Currency,
Waiver of Immunities, Etc.......................................19
SECTION 8.8. Governing Law...................................................20
SECTION 8.9. Waiver of Jury Trial............................................20
SCHEDULES
Schedule I - Notice Addresses
Schedule II - Existing Facilities
Schedule 2.1(d) - Certain Payments
EXHIBITS
Exhibit A - Form of Facility Agreement
INTERCREDITOR AGREEMENT (this "Agreement") dated as of
October 6, 2000 among The Warnaco Group, Inc. ("Group"), Warnaco Inc.
("Warnaco"), the other Subsidiaries of Group from time to time parties
hereto, The Bank of Nova Scotia ("Scotiabank"), as Administrative Agent
(the "Administrative Agent"), Scotiabank and Salomon Smith Barney Inc.
("SSBI"), as Lead Arrangers (the "Lead Arrangers"), Scotiabank and
Citibank, N.A. ("Citibank"), as Debt Coordinators (the "Debt
Coordinators"), Scotiabank, SSBI, Morgan Guaranty Trust Company of New York
("Morgan"), Commerzbank A.G. ("Commerzbank") and Societe Generale ("SG"),
as Arrangers (the "Arrangers"), SG as Security Agent ("Security Agent"),
the other financial institutions under the Covered Facilities specified
below from time to time parties hereto and State Street Bank and Trust
Company, as Collateral Trustee (the "Collateral Trustee").
RECITALS
In connection with the amendment, modification,
restatement and, in certain cases, extension of the Existing Facilities of
Group and various of its Subsidiaries pursuant to the Facility Agreement
specified below, and the consummation of the transactions contemplated
thereunder, the parties desire to enter into this Agreement to, among other
things, provide for the (a) application of all optional and mandatory
prepayments, commitment reductions and certain other payments made by the
Loan Parties under the Covered Facilities, (b) manner in which certain
voting and other actions, including the exercise of certain remedies, may
be taken by the Lender Parties and the Agents under the Loan Documents and
the Covered Facilities, (c) exercise of certain rights by the
Administrative Agent and the Debt Coordinators on behalf of the Lender
Parties and (d) appointment of a Collateral Trustee.
NOW, THEREFORE, in consideration of the premises and for
other valuable consideration, the receipt and sufficiency of which the
parties acknowledge, the parties agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions. As used in this Agreement, terms have the
meanings as specified in Part I of Annex A to the Facility Agreement (as
defined in Section 4.1(a)(ii) hereof), and the rules of interpretation and
construction set forth in Part II of such Annex A shall apply.
SECTION 1.2. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles as in effect on the Effective Date ("GAAP").
Article II
INTERCREDITOR ARRANGEMENTS
SECTION 2.1. Application of Prepayments, Other Amounts and Commitment
Reductions. (a) On the date of any payment to the Administrative Agent
pursuant to Section 2.9(a) of the Facility Agreement (i) the commitments
under each Covered Facility shall be permanently reduced (other than as
specified in Section 2.1(b)(iv)) in an amount equal to such facility's
Pro-Rata portion of such prepayment, (ii) each Covered Facility will be
prepaid (or in the case of letters of credit and acceptances, cash
collateralized, if applicable, as specified in Section 2.1(b)) in an amount
equal to the excess of the outstanding principal amount (or in the case of
letters of credit and acceptances, stated amount and face amount,
respectively) of the Obligations thereunder over the aggregate commitments
thereunder (as so reduced), (iii) to the extent not otherwise reduced
pursuant to clause (ii), each Covered Facility which is a term facility
shall be prepaid in an amount equal to such facility's Pro-Rata portion of
such prepayment, (iv) a payment shall be made in respect of each Derivative
Agreement (other than the Equity Derivatives) in the manner set forth in
clause (b)(ii) below in an amount equal to such facility's Pro-Rata portion
of such prepayment and (v) a payment shall be made in respect of each
Equity Derivative in the manner set forth in clause (b)(iii) below in an
amount equal to such facility's Pro-Rata portion of such prepayment.
(b) All commitment reductions and all amounts received by
the Administrative Agent from the Loan Parties or the Collateral Trustee
(A) pursuant to any Collateral Document or Section 2.9 of the Facility
Agreement, (B) by optional prepayment or (C) under clause (c) or (d) below
shall be allocated Pro Rata at the time of such prepayment or commitment
reduction; provided that:
(i) the prepayments and commitment reductions which would otherwise be
made to a Long-Term Facility Lender Party who is also a party to
one or more Short-Term Facilities will instead be applied to
prepay credit extensions outstanding and reduce commitments, if
any, of such Lender Parties under the Short-Term Facilities (on a
ratable basis, if such Lender Party is a party to more than one
such Short-Term Facility) in the direct order of maturity until
such Short-Term Facilities are paid in full, and then to such
Long-Term Facility Lender Parties otherwise as in accordance with
this Section 2.1(b);
(ii) allocations with respect to each Derivative Agreement (other than
the Equity Derivatives) shall be (A) made based on the
mark-to-market valuation thereof (calculated as specified in the
definition of "Agreement Value") at the time of such prepayment or
commitment reduction or other payment and (B) deposited in the
Collateral Account as collateral security for the applicable Loan
Party's obligations under such Derivative Agreement and paid, to
the extent necessary, by the Collateral Trustee in satisfaction of
obligations owed when due under such Derivative Agreement (as
determined by the Debt Coordinators), and any amounts remaining in
such Collateral Account with respect to any such Derivative
Agreement after all amounts owing thereunder have been paid in
full shall be paid by the Collateral Trustee to the Administrative
Agent for allocation as otherwise specified in this Section
2.1(b);
(iii) allocations with respect to each Equity Derivative shall be (A)
made based on the total commitment thereunder (calculated as
specified in the definition of "Agreement Value") at the time of
such prepayment or commitment reduction or other payment and (B)
(x) applied in repayment of the Equity Derivative Notes in such
order or manner as the Lender Party which is the counterparty to
such Equity Derivative elects or (y) after all such Equity
Derivative Notes have been paid in full, shall be held by such
counterparty as collateral security for the applicable Loan
Party's obligations under such Equity Derivative, and after such
Equity Derivative is terminated, all disposition of shares held
thereunder has been completed and all amounts owing thereunder
have been paid in full, shall be paid to the Administrative Agent
for allocation as otherwise specified in this Section 2.1(b); and
(iv) optional prepayments and other prepayments made by any Loan Party
of any revolving loans under any Covered Facility to the extent
such prepayments do not concurrently permanently reduce revolving
commitments under such Covered Facility will not be allocated to
any other Covered Facility.
All amounts received by each Lender Party, or their agent or other
representative, under any Covered Facility to which they are a party from
the Administrative Agent as specified in this Section 2.1(b) shall then
further be allocated first to reduce the then-remaining installments of any
term loans outstanding under such facility in the direct order of maturity,
and then, second, to permanently reduce any revolving loans outstanding
(with corresponding commitment reductions) thereunder (or in the case of
letters of credit and acceptances, deposited in the Collateral Account as
collateral security for the applicable Loan Party's obligations under such
letters of credit and acceptances and paid, to the extent necessary, by the
Collateral Trustee in satisfaction of obligations owed when due
thereunder), in all cases Pro Rata (except as provided in clause (i)
above). For purposes of determining the amount and timing of allocations to
be made pursuant to this Section 2.1, all calculations of the Debt
Coordinators shall be conclusive and final, absent manifest error.
(c) If any Lender Party party to any Foreign Facility
shall obtain at any time any proceeds resulting from the sale of, or other
enforcement action with respect to, any collateral securing such Foreign
Facility as a result of the acceleration of the maturity of the Debt, or
such Debt otherwise becoming due, under any such Foreign Facility, whether
pursuant to Article V of the Facility Agreement or otherwise, then such
Lender Party will pay over such proceeds to the Administrative Agent for
allocation as specified in Section 2.1(b).
(d) Other than (i) such payments to be made under the
Covered Facilities as are specified on Schedule 2.1(d), (ii) all scheduled
payments on account of Obligations (including fees and expenses) of the
Loan Parties required to be made in accordance with the terms of the
Covered Facilities (as amended or modified by the Loan Documents), (iii)
delivery and realization on amounts received pursuant to the Equity
Derivatives and reductions of the Equity Derivative Notes as provided in
Section 4 of the Memoranda of Understanding as in effect on the Effective
Date and referred to in items B.18 and B.19 of Schedule II to this
Agreement and (iv) payments made to the Specified Facility Lender upon the
occurrence and during the continuance of an Event of Default under either
the Facility Agreement or the Specified Facility, all other payments
(whether voluntary, involuntary, through the exercise of any right of
set-off, or other rights and remedies in respect of any of the Collateral,
or otherwise) made by any Loan Party on account of Obligations due and
payable to the Lender Parties under any of the Covered Facilities which are
paid to such Lender Parties shall be paid over to the Administrative Agent
for allocation as specified in Section 2.1(b).
(e) If any Lender Party shall obtain at any time any
payment of the character described in this Section 2.1 (other than payments
described in clause (d)(i), (ii) and (iii) above) in excess of its Pro Rata
share (in the determination of the Debt Coordinators according to the
allocation procedures specified in this Section 2.1), such Lender Party
shall forthwith purchase from the other Lender Parties such interests or
participating interests in the Obligations due and payable or owing to
them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment Pro Rata with each of them;
provided that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to
the purchasing Lender Party the purchase price to the extent of such Lender
Party's Pro Rata share of such recovery. The Loan Parties agree that any
Lender Party so purchasing an interest or participating interest from
another Lender Party pursuant to this Section 2.1(e) may, to the fullest
extent permitted by law, exercise all its rights of payment (including,
without limitation, the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender
Party were the direct creditor of the respective Loan Parties in the amount
of such interest or participating interest, as the case may be.
SECTION 2.2. Amendments of Loan Documents; Certain Amendments Under Covered
Facilities. (a) No amendment or waiver of any provision which is applicable
to all Covered Facilities (as amended or modified by the Loan Documents),
or of any provision of this Agreement or of any other Loan Document, nor
consent to any departure therefrom by any party hereto, or any authorized
agent or other representative of any party hereto, shall in any event be
effective unless the same shall be in writing and signed (or, in the case
of the Collateral Documents, consented to) by Group and the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given (it being
understood that, except as otherwise expressly provided herein, any
amendment or waiver of any provision which is applicable to all Covered
Facilities (as amended or modified by the Loan Documents) shall be (i)
effected pursuant to the provisions of this Section 2.2 in lieu of the
amendment provisions specified in each applicable Covered Facility and (ii)
deemed approved for all Covered Facilities other than the Specified
Facility); provided that (A) no amendment, waiver or consent shall, unless
in writing and signed by all of the Lender Parties who have executed and
delivered this Agreement (other than any Lender Party that is, at such
time, a Defaulting Lender), do any of the following at any time: (i)
release all or substantially all of the Collateral in any transaction or
series of related transactions, (ii) release all or substantially all of
the aggregate value of the benefits collectively available to the Lender
Parties under the Parent Guaranty and the Subsidiary Guaranty, (iii) amend
or waive the provisions of Section 2.1, (iv) amend this Section 2.2, (v)
increase the commitments of the Lender Parties under any Covered Facility,
(vi) reduce the principal (or in the case of letters of credit and
acceptances, stated amount and face amount, respectively) of, or interest
on, or any fees or other amounts payable with respect to any credit
extension under any Covered Facility, (vii) postpone any date fixed for any
payment of principal (or in the case of letters of credit and acceptances,
stated amount and face amount, respectively) of, or interest on, or any
fees or other amounts payable with respect to any credit extension under
any Covered Facility, or (viii) limit the liability of any Loan Party under
any of the Covered Facilities and provided further that no amendment,
waiver or consent shall, unless in writing and signed by an Agent in
addition to the Lender Parties required above to take such action, affect
the rights or duties of such Agent under this Agreement or any of the other
Loan Documents, (B) no amendment, waiver or consent with respect to the
following Sections of the Facility Agreement: 2.6(a), 2.6(b), 2.7 and 2.9,
shall be effective unless the same shall be in writing and signed (or
consented to) by the Supermajority Lenders, (C) no amendment of the last
sentence of the defined term "Required Lenders" shall be effective unless
the same shall be in writing and signed (or consented to) by holders of at
least a majority of the sum of the (i) aggregate capital outstanding under
the Securitization Facility and (ii) aggregate unused purchase commitments
under the Securitization Facility, (D) no amendment of the last sentence of
the defined term "Supermajority Lenders" shall be effective unless the same
shall be in writing and signed (or consented to) by holders of at least
66-2/3% of the sum of the (i) aggregate capital outstanding under the
Securitization Facility and (ii) aggregate unused purchase commitments
under the Securitization Facility, (E) no amendment of clause (D) of the
last paragraph of Section 1 of the Security Agreement or clause (vii) of
the defined term "Excluded Property" shall be effective unless the same
shall be in writing and signed (or consented to) by holders of 100% of the
sum of the (i) aggregate capital outstanding under the Securitization
Facility and (ii) aggregate unused purchase commitments under the
Securitization Facility, (F) the Specified Facility Lender may at any time
agree to any amendment or modification of, or waiver under, the Specified
Facility without the approval of the Required Lenders and (G) no amendment
of any provisions of Section 2.6(f) of the Facility Agreement prohibiting
issuances or sales of Equity Interests to satisfy obligations under the
Equity Derivatives shall be effective unless the same shall be in writing
and signed (or consented to) by the Required Lenders and the Lender Party
which is the counterparty to the applicable Equity Derivative.
(b) Each Lender Party agrees that (i) it will (or will
instruct its representative or agent under each Covered Facility to which
it is a party, as applicable, to) provide notice to the Debt Coordinators
of any proposed amendment or waiver under any such Covered Facility and
(ii) in addition to the requisite approvals required pursuant to the terms
of any Covered Facility, no amendment or waiver of any provision of any
Covered Facility (nor consent to any departure by any party therefrom) or
any other action under any Covered Facility which does any of the following
at any time shall in any event be effective unless the same shall be in
writing and signed or consented to by the Required Lenders: (i) reduce,
other than on a Pro Rata basis in accordance with Section 2.1, the
commitments of the lenders, obligors or other credit extension providers
thereunder, (ii) increase the rate of interest on, the loans or other
credit extensions thereunder or any fees or other amounts payable
thereunder, (iii) increase the amount of, or shorten any date fixed for any
payment of principal of, or interest on, the loans or other credit
extensions thereunder or any fees or other amounts payable thereunder, (iv)
release or take other action with respect to the Collateral and (v) add
additional or more restrictive covenants, defaults, required prepayment,
required redemption or other similar terms more restrictive or onerous on,
or less favorable to, Group and its Subsidiaries, or any of the Loan
Parties, than those generally applicable to the Covered Facilities and the
Existing Facilities. If the Debt Coordinators make a determination that any
of the elements of the type specified in any of the foregoing clauses (i)
through (v) are present in such proposed amendment or waiver, they will
deliver such proposed amendment or waiver to all of the Lender Parties
under all of the Covered Facilities, with approval of such proposed
amendment or waiver in such case subject to approval of the Required
Lenders.
SECTION 2.3. Defaults. (a) If a default or event of default shall occur
under any Covered Facility (a "Defaulted Facility"), (i) each Lender Party
party thereto agrees that it will (or will instruct its representative or
agent under such Defaulted Facility to which it is a party, as applicable,
to) promptly notify the Administrative Agent, and the Administrative Agent
will promptly notify all Lender Parties under all of the Covered Facilities
and the Collateral Trustee and (ii) from the Effective Date until the
earlier of (1) the Termination Date and (2) a Bankruptcy Event, (A) each
Lender Party other than, upon the occurrence and during the continuance of
an Event of Default under the Facility Agreement or the Specified Facility,
the Specified Facility Lender, agrees that it will refrain from exercising
any right, remedy or power available to it (including, without limitation,
rights of set-off (whether or not a default or event of default shall have
occurred) or acceleration and the right to reduce or terminate
commitments), and (B) each Lender Party agrees that it will refrain from
directing the Collateral Trustee, the Administrative Agent, the Debt
Coordinators or any other Person from taking any such action (including
making claims under any guaranty), under such Defaulted Facility or the
Loan Documents or applicable law related thereto, in either case, unless
authorized to do so by the Required Lenders, acting through the Debt
Coordinators. Notwithstanding the foregoing and notwithstanding any other
provision of this Agreement or the Facility Agreement to the contrary, (i)
the counterparties to the Equity Derivatives may terminate the Equity
Derivatives, may sell shares of Group's stock, may accept Equity Derivative
Notes and may exercise other rights and remedies under the terms of the
Equity Derivatives as in effect on the Effective Date, including, without
limitation, upon the occurrence of an Event of Default or Termination Event
(as such terms are defined in the applicable Equity Derivative) or upon the
occurrence of an Event of Default under the Facility Agreement; provided,
however, that except for the rights set forth in Section 2.1(d)(iii)
hereof, such counterparties' respective collection and enforcement rights
with respect to any net amount owing by any Loan Party as a result of
termination and settlement of the Equity Derivatives shall be subject to
the limitations otherwise specified in this clause (a) and (ii) upon the
occurrence and during the continuance of an Event of Default under either
the Facility Agreement or the Specified Facility, the Specified Facility
Lender may retain all payments made to it by any Loan Party at such time in
respect of any Obligations under the Specified Facility. EACH OF THE LENDER
PARTIES ACKNOWLEDGES AND AGREES THAT, WITH RESPECT TO ANY COLLATERAL, IT
SHALL HAVE NO RIGHT TO INDIVIDUALLY DIRECT THE COLLATERAL TRUSTEE, THE
ADMINISTRATIVE AGENT, THE DEBT COORDINATORS OR ANY OTHER PERSON TO TAKE OR
REFRAIN FROM TAKING ANY ACTION HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT
OR UNDER ANY COVERED FACILITY OR UNDER APPLICABLE LAW, AND THAT ALL RIGHTS
WITH RESPECT TO THE COLLATERAL SHALL BE VESTED SOLELY IN THE REQUIRED
LENDERS ACTING THROUGH THE COLLATERAL TRUSTEE (AS INSTRUCTED BY THE DEBT
COORDINATORS) AND OTHERWISE IN ACCORDANCE WITH THIS AGREEMENT.
(b) In case the Administrative Agent, the Collateral
Trustee or the Debt Coordinators shall have proceeded to enforce any right,
remedy or power under this Agreement or the other Loan Documents and the
proceeding for the enforcement thereof shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Administrative Agent, the Collateral Trustee or the Debt Coordinators, then
and in every such case each Secured Party shall, subject to any effect of
or determination in such proceeding, severally and respectively be restored
to their former positions and rights hereunder and under the other Loan
Documents with respect to the Collateral and in all other respects.
SECTION 2.4. New Facilities; Designated Capital Markets Transactions. As
specified in Section 2.6(b)(i) of the Facility Agreement, all New
Facilities require approval of the Debt Coordinators. Such approval will
(i) automatically be given with respect to Designated Capital Markets
Transactions which meet the Specified Parameters and (ii) otherwise be
given by the Debt Coordinators, unless in their reasonable judgment they
determine that any such New Facility (A) could impair the value of or have
an adverse effect on the Existing Facilities or the Covered Facilities or
the rights or interests of the Lender Parties thereunder or (B) contains
terms or provisions (except for customary covenants applicable to single
asset financings) that are materially more restrictive or onerous on Group
or any of the Loan Parties than those contained in the Existing Facilities
or the Covered Facilities. If the Debt Coordinators make a determination of
the type specified in either of the foregoing clauses (A) or (B), or in the
case where a proposed Designated Capital Markets Transaction does not, in
the judgment of the Debt Coordinators, meet the Specified Parameters, the
Debt Coordinators will deliver all material documentation with respect to
such proposed New Facility or Designated Capital Markets Transaction to all
of the Lender Parties, with such proposed New Facility or Designated
Capital Markets Transaction in such case subject to approval of the
Required Lenders. No fees will be required for approvals of New Facilities
or Designated Capital Markets Transactions by the Debt Coordinators or the
Required Lenders.
SECTION 2.5. Other Actions. (a) At Group's cost, each Lender Party will
make, execute, endorse, acknowledge, file and/or deliver to the Collateral
Trustee from time to time such powers of attorney (in form satisfactory to
such Lender Party), documents, and other assurances or instruments and take
such further steps relating to the Collateral as the Debt Coordinators may
reasonably require to preserve or protect the security interests in the
Collateral granted pursuant to the Loan Documents.
(b) Each of the Lender Parties, the Agents and the other
financial institutions from time to time parties hereto agree that it shall
not institute or join any Person or entity in instituting against Liberty
Street Funding Corp. or any other conduit purchaser which is a party to the
Securitization Facility, any bankruptcy, reorganization, insolvency or
liquidation proceeding or other proceedings under any federal of state
bankruptcy or similar law, for one year and a day after the date on which
the last maturing, short-term promissory note issued, or to be issued, by
Liberty Street Funding Corp. or such conduit purchaser to fund its
investment in accounts receivable or other financial assets is paid in
full.
(c) Each Lender Party which is a party hereto hereby (i)
irrevocably appoints the Debt Coordinators as its representative in
connection with the entering into of the Facility Agreement, and agrees to
be bound by the terms and provisions of the Facility Agreement as though it
had been a signatory thereto and (ii) acknowledges that each of the Debt
Coordinators will, concurrently with the execution and delivery of this
Agreement, execute and deliver the Facility Agreement in its capacity as
Debt Coordinator and as representative of each such Lender Party.
Article III
WAIVER
SECTION 3.1. Waiver. Each Lender Party hereby waives (and instructs each of
its authorized representatives or agents under each of the Covered
Facilities to which it is a party, as applicable, to waive) any and all
defaults or events of default known to it which may have occurred and be
existing under the Covered Facilities to which it is a party as of the
Effective Date; provided that such waiver shall not constitute a waiver of
any default, event of default or other condition giving rise to a default
or event of default separately arising after the Effective Date under any
Loan Document or Covered Facility to which it is a party.
Article IV
CONDITIONS OF EFFECTIVENESS
SECTION 4.1. Conditions of Effectiveness. Articles II and III of this
Agreement shall become effective as of the date (the "Effective Date") when
and only when all of the conditions set forth in this Article IV have been
satisfied.
(a) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the
Debt Coordinators (unless otherwise specified) and in sufficient
copies for each Lender Party:
(i) A counterpart of this Agreement executed by or on behalf
of each Loan Party and each Lender Party or the requisite
number of Lender Parties under each of the Covered
Facilities constituting "required lenders" thereunder (or
such similar term as denotes the necessary number of
lenders or other financial institutions owed or holding
the required percentage of loans or other credit
extensions outstanding or commitments therefor as may be
necessary to amend, modify, restate and, in certain
cases, extend, any such Credit Facility as herein
stated), as determined by the Debt Coordinators (with
notice thereof to Group).
(ii) The Amendment, Modification, Restatement and General
Provisions Agreement in substantially the form of Exhibit
A hereto (as the same may be amended, supplemented or
otherwise modified from time to time, the "Facility
Agreement"), duly executed by each Loan Party, the Debt
Coordinators, the Administrative Agent and the Collateral
Trustee.
(iii) The valuation report for all trademarks, copyrights,
patents, licenses and other general intangibles of the
Loan Parties.
(b) Before giving effect to the transactions contemplated by the Loan
Documents, there shall have occurred no Material Adverse Change.
(c) There shall exist no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any
arbitrator or governmental instrumentality that (i) could
reasonably be expected to result in a Material Adverse Change or
(ii) restrains, prevents or imposes or can reasonably be expected
to impose materially adverse conditions upon the Covered
Facilities or the transactions contemplated thereby.
(d) Nothing contained in any public disclosure made by Group or any of
its Subsidiaries after July 19, 2000, or in any information
disclosed to the Arrangers or the Lender Parties by Group or any
of its Subsidiaries after such date, shall lead any Arranger or
any Lender Party to determine that, and none of the Arrangers or
the Lender Parties shall have otherwise become aware of any fact
or condition not disclosed to them prior to such date which shall
lead any Arranger or Lender Party to determine that the condition
(financial or otherwise), operations, performance, properties or
prospects of Group and its Subsidiaries, taken as a whole, are
different in any material adverse respect from that disclosed in
writing to such Arranger or Lender Party by or on behalf of Group
prior to such date, or derived by such Arranger or Lender Party
from the public filings of Group or any of its Subsidiaries prior
to such date.
(e) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated by the Loan
Documents shall have been obtained (without the imposition of any
conditions that are not acceptable to the Lender Parties) and no
law or regulation shall be applicable in the judgment of the
Lender Parties, in each case that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated
by the Loan Documents or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired
by any of them.
(f) Group shall have paid (i) the fees specified in Sections 7.2 and
7.3 of the Facility Agreement, and all accrued fees of the Agents
and the Lender Parties, in each case to the Administrative Agent
for deposit in the Administrative Agent's Account, and the
Administrative Agent will distribute such funds to the Lender
Parties not later than the next succeeding Business Day thereafter
and (ii) all accrued expenses of the Agents and the Lender Parties
(including the reasonable accrued fees and expenses of counsel to
the Debt Coordinators and the Lender Parties, and all local
counsel and foreign jurisdiction counsel to the Debt Coordinators)
which have been invoiced prior to the Effective Date.
Article V
COLLATERAL TRUSTEE; SECURITY AGENT
SECTION 5.1. Authorization and Action. (a) The Administrative Agent and
each Lender Party appoints and authorizes State Street Bank and Trust
Company to take action on its behalf as the Collateral Trustee and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to it by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental thereto,
subject at all times to the provisions of the Collateral Trust Agreement,
which defines the rights, powers and duties of the Collateral Trustee. The
Administrative Agent and each Lender Party appoints and authorizes SG to
take action on its behalf as the Security Agent and to exercise such powers
and discretion under this Agreement and the other Loan Documents as are
delegated to it by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto.
(b) State Street Bank and Trust Company, for itself and its successors,
accepts its appointment as Collateral Trustee and the trusts created by the
Collateral Trust Agreement upon the terms and conditions hereof and
thereof. SG, for itself and its successors, accepts its appointment as
Security Agent upon the terms and conditions specified therefor hereof and
under the other Loan Documents.
(c) Neither the Collateral Trustee nor the Security Agent
shall be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Debt
Coordinators (acting upon the instruction of the Required Lenders), and
such instructions shall be binding upon all Lender Parties; provided,
however, that (i) neither the Collateral Trustee nor the Security Agent
shall be required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement, any other Loan Document or
applicable law and (ii) in those circumstances where the Collateral Trustee
or the Security Agent is required by any Foreign Collateral Document or
applicable law to take action or refrain from taking action on their own
discretion, the Debt Coordinators will still instruct the Collateral
Trustee or the Security Agent, as applicable, to take or refrain from
taking such action, as the case may be, but will act in accordance with the
standards set forth in the applicable Foreign Collateral Document.
Article VI
THE AGENTS
SECTION 6.1. Authorization and Action. Scotiabank and SSBI are hereby
appointed Lead Arrangers hereunder. Scotiabank, SSBI, Morgan, Commerzbank
and SG are hereby appointed Arrangers hereunder. Scotiabank and Citibank
are hereby appointed Debt Coordinators hereunder and under the other Loan
Documents. Scotiabank is hereby appointed Administrative Agent hereunder
and under the other Loan Documents. Each Lender Party hereby appoints and
authorizes each such Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to such Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement and the other Loan
Documents, each Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon
the instructions of the Required Lenders (or in the case of the Collateral
Trustee, acting upon the instructions of the Debt Coordinators), and such
instructions shall be binding upon all Lender Parties; provided, however,
that no Agent shall be required to take any action that exposes such Agent
to personal liability or that is contrary to this Agreement or applicable
law, and the Collateral Trustee shall be entitled to the benefits of the
Collateral Trust Agreement. Each Agent agrees to give to each Lender Party
prompt notice of each notice given to it by any Loan Party pursuant to the
terms of this Agreement or any of the other Loan Documents; provided,
however, that the Collateral Trustee shall only be obligated to provide
notice to the Debt Coordinators, who, in turn, shall provide notice to the
Lender Parties. As of the Effective Date, the respective obligations of (i)
Scotiabank, SSBI, Morgan, Commerzbank and SG in their capacity as Arrangers
shall terminate and (ii) Scotiabank and SSBI in their capacity as Lead
Arrangers shall terminate.
SECTION 6.2. Administrative Agent ; Debt Coordinators; Collateral Trustee;
Security Agent. (a) The Administrative Agent will administer all matters
related to voting, notices and communications with the Lender Parties, the
Debt Coordinators and the Collateral Trustee under the Loan Documents, and
will maintain a register of all Lender Parties in accordance with Section
8.4. Other than these functions and others reasonably incidental thereto,
and except as otherwise expressly set forth herein, the Administrative
Agent shall have no additional responsibilities or obligations.
(b) Each Lender Party acknowledges and agrees that
Scotiabank and Citibank, in their capacities as Debt Coordinators, will
execute and deliver the Facility Agreement and will exercise on behalf of
all Lender Parties such powers and discretion as are specified hereunder,
under the Facility Agreement and under the other Loan Documents, including,
without limitation, the power and discretion to (i) approve New Facilities
without the consent of the Lender Parties or to make a determination that
the consent of the Required Lenders is required, in each case, subject to
and in accordance with Section 2.4 hereof, (ii) make calculations in
respect of prepayment allocations, in accordance with Section 2.1 hereof,
(iii) make determinations regarding levels of approval required with
respect to certain amendments and waivers, in accordance with Section
2.2(b) hereof and (iv) make determinations regarding satisfaction of
certain conditions precedent, in accordance with Section 4.1 hereof. Each
Lender Party hereby specifically authorizes the Debt Coordinators to
execute and deliver the Facility Agreement and to exercise such powers and
discretion as aforesaid, and agrees that each of Scotiabank and Citibank,
in their capacity as Debt Coordinators, shall have no other
responsibilities or obligations except as otherwise expressly set forth
herein and in the other Loan Documents, and others reasonably incidental
thereto.
(c) The Debt Coordinators, the Administrative Agent, the
Security Agent and the Collateral Trustee (i) shall be entitled to rely on
the advice of counsel concerning all matters pertaining to their respective
powers and duties hereunder and under the other Loan Documents, (ii) shall
not be responsible for the negligence or misconduct of any agents, nominees
or attorneys-in-fact reasonably selected by them and (iii) may rely, and
shall be fully protected in acting upon, any resolution, statement,
certificate, instrument, opinion, report, notice, request, consent, order
or other paper or document which it believes in good faith to be genuine
and to have been signed or presented by the proper party or parties or, in
the case of telecopies, to have been sent by the proper party or parties.
The Collateral Trustee shall, in addition to the rights under Section 6.2
and 6.3, have all rights and protections afforded it under the Collateral
Trust Agreement.
SECTION 6.3. Agents' Reliance, Etc. None of the Agents nor any of their
directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement and the other Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of
the foregoing, each Agent: (i) may consult with legal counsel (including
counsel for any Loan Party), independent public accountants and other
experts reasonably selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Loan Party and shall not be responsible to any Loan
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement and the other Loan
Documents; (iii) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions
of this Agreement and the other Loan Documents on the part of any Loan
Party or to inspect the property (including, without limitation, the books
and records) of any Loan Party; (iv) shall not be responsible to any Loan
Party for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or the other Loan
Documents, the Collateral, the liens on or security interest in such
Collateral or the perfection or priority thereof or any other instrument or
document furnished pursuant hereto or thereto; and (v) shall incur no
liability under or in respect of this Agreement or the other Loan Documents
by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION 6.4. Scotiabank, SSBI, Citibank, Commerzbank, Morgan, SG, State
Street Bank and Trust Company and Affiliates. With respect to its
commitments, the loans and other credit extensions made by it and any notes
or other instruments issued to it under any of the Covered Facilities, each
of Scotiabank, SSBI, Citibank, Commerzbank, Morgan, SG and State Street
Bank and Trust Company shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Lender Party and may
exercise the same as though it were not an Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated,
include Scotiabank, SSBI, Citibank, Commerzbank, Morgan and SG in their
individual capacities. Each of Scotiabank, SSBI, Citibank, Commerzbank,
Morgan, SG and State Street Bank and Trust Company and their Affiliates may
accept deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage in any kind
of business with, any Loan Party, any of their Subsidiaries and any Person
who may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Scotiabank, SSBI, Citibank, Commerzbank, Morgan, SG
and State Street Bank and Trust Company were not Agents and, except as
otherwise expressly provided for herein and in the other Loan Documents in
respect of Covered Facilities to which such Persons are a party at any
time, without any duty to account therefor to the Lender Parties.
SECTION 6.5. Lender Party Decision. Each Lender Party acknowledges that it
has, independently and without reliance upon any Agent or any other Lender
Party and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender Party and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 6.6. Indemnification. Each Lender Party agrees to indemnify each
Agent (to the extent not reimbursed by the Loan Parties), ratably according
to the aggregate commitments, loans and other credit extensions made by it
under the Covered Facilities, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorney's fees) or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of this Agreement, the other
Loan Documents or any of the Covered Facilities, or any action taken or
omitted by such Agent under this Agreement, the other Loan Documents or any
of the Covered Facilities (collectively, the "Indemnified Costs"), except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Agent's gross negligence or willful misconduct. In the
case of any claim, investigation, litigation or proceeding for which
indemnity under this Section 6.6 applies, such indemnity shall apply
whether or not such claim, investigation, litigation or proceeding is
brought by any of the Agents, any of the Lender Parties or a third party.
Without limitation of the foregoing, each Lender Party agrees to reimburse
each Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by such Agent in connection with
the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings
or otherwise) of, or legal advice in respect of rights or responsibilities
under, this Agreement, the other Loan Documents or the Covered Facilities,
to the extent that such Agent is not reimbursed for such expenses by the
Loan Parties. For the avoidance of doubt, it is understood that the
indemnification provisions in this Section 6.6 inure to the benefit of
State Street Bank and Trust Company in its individual capacity, in its
capacity as joint creditor and in any other capacity in which it acts under
any and all Loan Documents.
SECTION 6.7. Successor Agents. Any Agent may resign at any time by giving
30 days prior written notice thereof to the Administrative Agent and Group
and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint a successor Agent with the approval of the Debt
Coordinators and, so long as no Event of Default shall have occurred and be
continuing, Group. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the Debt Coordinators
and the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a Lender Party and a financial institution organized
under the laws of the United States of America or of any State thereof and
having a net worth of at least $500,000,000; provided; however, that if,
such retiring Agent is unable to locate another Person which is willing to
accept such appointment and which meets the qualifications set forth above,
the retiring Agent's resignation shall nevertheless thereupon become
effective. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement and the other Loan Documents.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VI shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 6.8. No Knowledge of Defaults. The Lender Parties agree that no
Indemnified Party (as defined in Section 8.3 hereof) shall be deemed to
have knowledge or notice of the occurrence of a Default or Event of Default
unless such Indemnified Party has received a written notice from a Lender
Party or a Loan Party specifying such Default or Event of Default and
stating that such notice is a "Notice of Default". In the event that any
Lender Party receives such a Notice of Default, then such Lender Party
shall give prompt notice thereof to the Debt Coordinators. The Agents and
the Lender Parties shall (subject to the terms of this Agreement and of the
Facility Agreement) take such action with respect to such Default or Event
of Default as required in accordance with the terms of this Agreement or
the other Loan Documents.
Article VII
SPECIAL PROVISIONS CONCERNING FOREIGN JURISDICTIONS
SECTION 7.1. Joint Creditorship. (a) Each of the Loan Parties and each of
the Lender Parties and the Agents agree that the Collateral Trustee shall
be agent (mandataire) of the Lender Parties and the Agents and the joint
and several creditor (together with the relevant Lender Party and the
Agents) of each and every obligation of any Loan Party towards each of the
Lender Parties and Agents under the Loan Documents and the Covered
Facilities (including a creancier solidaire as referred to in Articles 1197
et. seq. of the French Civil Code) and that accordingly the Collateral
Trustee will have its own independent right to demand performance by the
relevant Loan Party of those obligations whether owned jointly and
severally to the Lender Parties and Agents or to each and any of them. Any
discharge of any such obligation to one of the Collateral Trustee, the Debt
Coordinators or any other Lender Party shall, to the same extent, discharge
the corresponding obligation owing to the other pro tanto and a Lender
Party, the Debt Coordinators or the Collateral Trustee shall not, by virtue
of this Section 7.1(a), be entitled to pursue the Loan Party concurrently
for the same obligation.
(b) Without limiting or affecting the Collateral
Trustee's rights against any Loan Party (whether under this Section 7.1 or
any other provision of the Loan Documents), the Collateral Trustee agrees
with the Debt Coordinators and each of the Lender Parties and Agents (on a
several and divided basis) that, subject as set out in the following
sentence, it will not exercise its rights as a joint creditor with a Lender
Party or Agent except with the consent of the relevant Lender Party or
Agent. For the avoidance of doubt, nothing in the previous sentence shall
in any way limit the Collateral Trustee's right to act in the protection or
preservation of rights under or to enforce any Collateral Document as
contemplated by this Agreement, the other Loan Documents and/or the
relevant Collateral Document (or to do any act reasonably incidental to any
of the foregoing).
SECTION 7.2. Declaration of Trust (Treuhand) and Appointment as
Administrator . (a) The Collateral Trustee shall:
(i) hold any Lien or security interest which is governed
by German law and is assigned
(Sicherungseigentum/Sicherungsabtretung) or otherwise transferred
to it under a non-accessory security right (nicht akzessorische
Sicherheit) pursuant to any of the Collateral Documents or
otherwise for the purpose of securing any of the obligations
secured thereunder as trustee (Treuhander) for the benefit of the
Lender Parties and the Agents; and
(ii) administer any Lien or security interest (if any)
which is pledged (Verpfandung) or otherwise transferred under an
accessory security right (akzessorische Sicherheit) to it and/or
the Lender Parties and/or the Agents pursuant to any of the
Collateral Documents or otherwise for the purpose of securing any
of the Obligations secured thereunder and each Lender Party and
Agent authorizes the Collateral Trustee to accept as its
representative (Stellvertreter) any pledge or other creation of
any other accessory right made to such Lender Party and Agent,
and shall act in relation to the Lien and security interests in accordance
with the terms and subject to the conditions of this Agreement and the
other Loan Documents. Each Lender Party and Agent hereby ratifies and
approves all acts done by the Collateral Trustee on such Lender Party's and
Agent's behalf before execution thereof.
(b) It is hereby agreed that, in relation to any
jurisdiction the courts of which would not recognize or give effect to the
trust (Treuhand) expressed to be created by this Section 7.2, the
relationship of the Lender Party and the Agent to the Collateral Trustee
shall be construed as one of principal and agent but, to the extent
permissible under the laws of such jurisdiction, all the other provisions
of this Section 7.2 shall have full force and effect between the parties
hereto.
(c) The Collateral Trustee is, and any sub-agent or
successor shall be, exempt from any restrictions under ss. 181 of the
German Civil Code (BGB).
SECTION 7.3. Quebec Security. For greater certainty, and without limiting
the powers of the Collateral Trustee hereunder or under any of the other
Loan Documents, each of the Loan Parties hereby acknowledges that the
Collateral Trustee shall, for purposes of holding any security granted by
any Credit Party on property pursuant to the laws of the Province of Quebec
to secure obligations of any other Credit Party under any debenture (the
"Specified Obligations"), be the holder of an irrevocable power of attorney
(fonde de pouvoir) (within the meaning of the Civil Code of Quebec) for all
present and future Lender Parties and in particular for all present and
future holders of any debenture. Each of the Lender Parties hereby
irrevocably constitutes, to the extent necessary, the Collateral Trustee as
the holder of an irrevocable power of attorney (fonde de pouvoir) (within
the meaning of Article 2692 of the Civil Code of Quebec) in order to hold
security granted by any Credit Party in the Province of Quebec to secure
the Specified Obligations. Each assignee of a Lender Party shall be deemed
to have confirmed and ratified the constitution of the Collateral Trustee
as the holder of such irrevocable power of attorney (fonde de pouvoir) by
execution of the relevant Joinder Agreement. Notwithstanding the provisions
of Section 32 of the Special Corporate Powers Act (Quebec), the Collateral
Trustee may acquire and be the holder of any debenture. The Loan Parties
hereby acknowledge that such debenture constitutes a title of indebtedness,
as such term is used in Article 2692 of the Civil Code of Quebec.
Article VIII
MISCELLANEOUS
SECTION 8.1. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered,
to the address specified on Schedule I hereto or, as to any party, at such
other address as shall be designated by such party in a written notice to
the Administrative Agent. All such notices and communications shall, when
mailed, telegraphed, telecopied or telexed, be effective when deposited in
the mails, delivered to the telegraph company, transmitted by telecopier or
confirmed by telex answerback, respectively, except that notices and
communications to any Agent shall not be effective until received by such
Agent. Delivery by telecopier of an executed counterpart of any amendment
or waiver of any provision of this Agreement or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof.
SECTION 8.2. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Loan Document shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.3. Costs and Expenses. (a) The Loan Parties agree to pay on
demand (i) all reasonable costs and expenses of the Debt Coordinators, the
Lead Arrangers, the Administrative Agent and the Collateral Trustee in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for the Debt Coordinators,
including all local counsel and foreign jurisdiction counsel, with respect
to advising the Debt Coordinators, the Administrative Agent and the
Collateral Trustee as to their rights and responsibilities, and the rights
and responsibilities of the Lender Parties, or the perfection, protection
or preservation of rights or interests, under the Loan Documents, with
respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any
events or circumstances that may give rise to a Default and with respect to
presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors'
rights generally and any proceeding ancillary thereto) and (ii) all
reasonable costs and expenses of each Agent and each Lender Party in
connection with the enforcement of the Loan Documents, whether in any
action, suit or litigation, or any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without
limitation, the reasonable fees and expenses of counsel for the Debt
Coordinators, the Collateral Trustee, the Administrative Agent and each
Lender Party with respect thereto).
(b) The Loan Parties agree to indemnify and hold harmless each Agent, each
Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party")
from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) this Agreement and the other Loan Documents, or any
of the transactions contemplated hereby or thereby, except to the extent
such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding
to which the indemnity in this Section 8.3(b) applies, such indemnity shall
be effective whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, shareholders or creditors or an
Indemnified Party or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated by the Loan Documents are
consummated. Each of the Loan Parties also agrees not to assert any claim
against any Agent, any Lender Party or any of their Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Loan Documents or any
of the transactions contemplated thereunder or hereunder.
(c) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may
be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion (and subject to reimbursement, in case
of payment by the Administrative Agent, under Section 6.6).
(d) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Loan Document, the agreements and
obligations of the Loan Parties contained in this Section 8.3 shall survive
the payment in full of all amounts payable hereunder, under the Covered
Facilities and under any of the other Loan Documents.
SECTION 8.4. Register; Cash Management Register. (a) The Administrative
Agent shall maintain at its address referred to in Section 8.1 a copy of
each Joinder Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lender Parties and the
commitment of the lenders and other financial institutions under each
Covered Facility from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Loan Parties, the Agents and the Lender Parties shall treat
each Person whose name is recorded in the Register as a Lender Party
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Loan Parties or any Agent or any Lender
Party at any reasonable time and from time to time upon reasonable prior
notice.
(b) Upon its receipt of a Joinder Agreement executed by a new Lender Party,
the Administrative Agent shall, if such Joinder Agreement has been
completed and is in substantially the form of Exhibit G to the Facility
Agreement, (i) accept such Joinder Agreement, (ii) record the information
contained therein in the Register (and thereupon Schedule I hereto will be
deemed amended without further action by any Person to reflect the notice
information for such new Lender Party) and (iii) give prompt notice thereof
to the Debt Coordinators.
(c) The Collateral Trustee shall maintain at its address
referred to in Schedule I hereof a copy of each notice delivered to it as
specified in the definition of "Cash Management Services", and a register
for the recordation of the information specified in each such notice (the
"Cash Management Register"). The entries in the Cash Management Register
shall be conclusive and binding for all purposes, absent manifest error, of
determining each Cash Management Bank's share of the $20,000,000 aggregate
amount specified in the definition of "Cash Management Services"; provided
that in no event shall the aggregate amount of all such entries exceed
$20,000,000. The Cash Management Register shall be available for inspection
by Group or any Agent or any Lender Party (acting through the Debt
Coordinators) at any reasonable time and from time to time upon reasonable
prior notice. Upon its receipt of any notice in respect either of the
creation of a daylight overdraft facility or cash management account, or
the termination of any such facility or account, in each case as specified
in the definition of "Cash Management Services", the Collateral Trustee
will give prompt notice thereof to the Debt Coordinators.
SECTION 8.5. Execution in Counterparts(a) . This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Manual delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of an
original executed counterpart of this Agreement.
SECTION 8.6. Binding Effect; Novation. (a) This Agreement shall become
effective when it shall have been executed by the Loan Parties, the Debt
Coordinators, the Administrative Agent, the Collateral Trustee and the
Lender Parties and thereafter shall be binding upon and inure to the
benefit of the Loan Parties, the Debt Coordinators, the Administrative
Agent, the Collateral Trustee and the Lender Parties and their respective
successors and assigns, except that no Loan Party shall have the right to
assign its rights hereunder or any interest herein without the prior
written consent of the Debt Coordinators.
(b) To the extent any of the Covered Facilities have
assignment, transfer or novation provisions which permit a Lender Party to
assign its rights and obligations to an assignee with the consent of a Loan
Party, the requirement that a Loan Party consent to any such assignment is
hereby terminated; provided that any such assignment shall be to (i) a
Lender Party; (ii) an Affiliate of a Lender Party; (iii) a commercial bank,
savings and loan association or savings bank organized under the laws of
the United States, or any State thereof, and having total assets in excess
of $100,000,000, (iv) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic Development
and Cooperation (the "OECD") or has concluded special lending arrangements
with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having total assets in excess of $100,000,000; (v) the central bank of any
country that is a member of the OECD or (vi) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) having total assets in excess of
$100,000,000 that is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business.
SECTION 8.7. Jurisdiction, Process Agent, Judgment Currency, Waiver of
Immunities, Etc. (a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York State court or Federal court of the United
States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party or any
of the Covered Documents, or for recognition or enforcement of any judgment
(other than, in any case, with respect to any foreclosure or other
enforcement action with respect to or in any way related to the Collateral
which is reasonably determined by the Debt Coordinators to be advisable to
be brought in a court of local jurisdiction), and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such
Federal court (or, in such local court, as aforesaid). Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other
Loan Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) If for the purpose of obtaining judgment in any court it is necessary
to convert a sum due hereunder to any party hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent permitted
by law, that the rate of exchange used shall be that at which in accordance
with normal banking procedures such party could purchase the first currency
with such other currency in New York City on the day which is at least two
Business Days prior to the day on which final judgment is rendered.
(d) To the fullest extent permitted by law, the obligation of any party in
respect of any sum payable hereunder by it to any other party hereunder
shall, notwithstanding any judgment in a currency (the "Judgment Currency")
other than Dollars (the "Agreement Currency"), be discharged only to the
extent that on the Business Day following receipt by such other party of
any sum adjudged to be so due in the Judgment Currency such other party may
in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement
Currency which could have been so purchased is less than the sum originally
due to such other party in the Agreement Currency, such first party agrees,
as a separate obligation and notwithstanding any such judgment, to
indemnify such other party against such loss, and, if the amount of the
Agreement Currency which could have been so purchased exceeds the sum
originally due to such other party, such other party agrees to remit to
such first party such excess.
(e) To the extent that any of the parties hereto has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit
or proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution or judgment or
otherwise) with respect to itself or any of its property each of the
parties hereto hereby irrevocably waives and agrees not to plead or claim
such immunity in respect of its obligations under this Agreement and the
other Loan Documents. Each of the parties hereto agrees that the waivers
set forth above shall have the fullest extent permitted under the Foreign
Sovereign Immunities Act of the United States of America and are intended
to be irrevocable and not subject to withdrawal for purposes of such act.
SECTION 8.8. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.9. Waiver of Jury Trial. Each of the parties hereto irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating
to this Agreement or any of the Loan Documents or the actions of any Agent
or any Lender Party in the negotiation, administration, performance or
enforcement hereof or thereof.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE WARNACO GROUP, INC.
By: /s/
---------------------
Title:
WARNACO INC.
By: /s/
---------------------
Title:
WARNER'S (UNITED KINGDOM) LTD.
By: /s/
---------------------
Title
WARNER'S (EIRE) TEORANTA
By: /s/
---------------------
Title
PENHALIGON'S LIMITED
By: /s/
---------------------
Title
PENHALIGON'S & JEAVONS
INVESTMENT COMPANY LIMITED
By: /s/
---------------------
Title
AUTHENTIC FITNESS OF
CANADA INC.
By: /s/
---------------------
Title
WARNACO OF CANADA COMPANY
By: /s/
---------------------
Title
WARNACO LAC ONE GmbH
By: /s/
---------------------
Title
WARNACO LAC TWO GmbH
By: /s/
---------------------
Title
ERATEX-WARNACO LAC TWO
GmbH & CO. KG
By: /s/
---------------------
Title
WARNER'S AIGLON S.A.
By: /s/
---------------------
Title
CALVIN KLEIN FRANCE SNC
By: /s/
---------------------
Title
WARNACO FRANCE SARL
By: /s/
---------------------
Title
PMJ S.A.
By: /s/
---------------------
Title
IZKA S.C.
By: /s/
---------------------
Title
LEJABY S.A.S
By: /s/
---------------------
Title
EURALIS S.A.S.
By: /s/
---------------------
Title
WARNACO B.V.
By: /s/
---------------------
Title
WARNACO HOLLAND B.V.
By: /s/
---------------------
Title
WARNACO NETHERLANDS B.V.
By: /s/
---------------------
Title
WARNER'S COMPANY (BELGIUM) S.A.
By: /s/
---------------------
Title
DONATEX WARNACO S.A.
By: /s/
---------------------
Title
LINTEX-WARNACO S.A.
By: /s/
---------------------
Title
LENITEX-WARNACO GesmbH
By: /s/
---------------------
Title
WARNACO S.r.l.
By: /s/
---------------------
Title
WARNACO (HK) LTD.
By: /s/
---------------------
Title
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
Arranger, Lead Arranger and
Debt Coordinator
By: /s/
---------------------
Title:
SALOMON SMITH BARNEY INC.,
as Arranger and Lead Arranger
By: /s/
---------------------
Title:
CITIBANK, N.A.,
as Debt Coordinator
By: /s/
---------------------
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK,
as Arranger
By: /s/
---------------------
Title:
COMMERZBANK A.G., NEW YORK BRANCH,
as Arranger
By: /s/
---------------------
Title:
SOCIETE GENERALE,
as Arranger
By: /s/
---------------------
Title:
STATE STREET BANK AND
TRUST COMPANY,
as Collateral Trustee
By: /s/
---------------------
Title:
IN WITNESS WHEREOF, the parties to the below-specified
Credit Agreement have caused this Intercreditor Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
above written.
THE BANK OF NOVA SCOTIA CITICORP USA, INC.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
MORGAN GUARANTY TRUST SOCIETE GENERALE
COMPANY OF NEW YORK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
COMMERZBANK AG, NEW YORK THE SANWA BANK, LIMITED, NEW YORK BRANCH
& GRAND CAYMAN BRANCHES
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
By: /s/
----------------------------
Title:
UNION BANK OF CALIFORNIA, N.A. WACHOVIA BANK, N.A.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
THE BANK OF NEW YORK BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
BANK OF AMERICA, N.A. FLEET NATIONAL BANK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
UNICREDITO ITALIANO THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
FIRST UNION NATIONAL BANK THE INDUSTRIAL BANK OF JAPAN, LTD.,
NEW YORK BRANCH
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
GENERAL ELECTRIC CAPITAL CORPORATION HSBC BANK USA
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
MERITA BANK PLC KBC BANK NV
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
U.S. $600,000,000 Amended and Restated Credit Agreement, dated as of
November 17, 1999, among Warnaco Inc., as borrower, The Warnaco Group, Inc,
the banks and other financial institutions from time to time party thereto
as initial lenders, Scotiabank and SSBI, as co-lead arrangers and co-book
managers, Citicorp USA, Inc., as syndication agent, Commerzbank AG (New
York Branch), as documentation agent and Scotiabank, as administrative
agent
IN WITNESS WHEREOF, the parties to the below-specified
Credit Agreement have caused this Intercreditor Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
above written.
THE BANK OF NOVA SCOTIA CITICORP USA, INC.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
MORGAN GUARANTY TRUST SOCIETE GENERALE
COMPANY OF NEW YORK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
COMMERZBANK AG, NEW YORK & THE BANK OF NEW YORK
GRAND CAYMAN BRANCHES
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
By: /s/
----------------------------
Title:
BANK OF TOKYO-MITSUBISHI THE DAI-ICHI KANGYO BANK, LIMITED
TRUST COMPANY
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
FLEET NATIONAL BANK GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
SUN TRUST BANK BANK OF AMERICA, N.A.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
U.S.$450,000,000 Five-Year Credit Agreement, dated as of November 17, 1999,
among Warnaco Inc., as borrower, The Warnaco Group, Inc., the banks and
other financial institutions from time to time party thereto as initial
lenders, Scotiabank and SSBI, as co-lead arrangers and co-book managers,
Citicorp USA, Inc., as syndication agent, Societe Generale and Commerzbank
AG, as documentation agents, Bank of America N.A. and the Dai-Ichi Kangyo
Bank, Ltd., as co-agents, and Scotiabank, as administrative agent
IN WITNESS WHEREOF, the parties to the below-specified
Credit Agreement have caused this Intercreditor Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
above written.
SOCIETE GENERALE CITICORP USA, INC.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
COMMERZBANK AG SCOTIABANK EUROPE PLC
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
FLEET NATIONAL BANK KREDIETBANK (NEDERLAND) N.V.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
FRF 480,000,000 Revolving Credit, Guarantee and Overdraft Agreement, dated
August 14, 1996, between the companies set forth in Schedule 1 thereto as
borrowers, the companies set forth in Schedule 2 thereto as guarantors,
Societe Generale, as arranging bank, managing agent, administrative agent
and overdraft bank and the banks and other financial institutions from time
to time party thereto as lenders, as amended by a Supplement Agreement
dated April 17, 1998
IN WITNESS WHEREOF, the party to the below-specified
Credit Agreement has caused this Intercreditor Agreement to be executed by
its officers thereunto duly authorized, as of the date first above written.
KBC BANK N.V.
By: /s/
------------------------------
Title:
U.S. $21,500,000 Loan Agreement between Warnaco Inc., as borrower and KBC
Bank N.V. dated as of July 31, 1998
IN WITNESS WHEREOF, the party to the below-specified
Interest Rate Protection Agreements has caused this Intercreditor Agreement
to be executed by its officers thereunto duly authorized, as of the date
first above written.
CITIBANK, N.A.
By: /s/
------------------------------
Title:
Interest rate protection Agreements between The Warnaco Group, Inc. and
Citibank, N.A. dated October 12, 1995 and May 29, 1997
IN WITNESS WHEREOF, the party to the below-specified
Interest Rate Protection Agreement has caused this Intercreditor Agreement
to be executed by its officers thereunto duly authorized, as of the date
first above written.
THE BANK OF NOVA SCOTIA
By: /s/
------------------------------
Title:
Interest rate protection agreement between The Warnaco Group, Inc. and The
Bank of Nova Scotia dated October 22, 1992
IN WITNESS WHEREOF, the party to the below-specified
Interest Rate Protection Agreement has caused this Intercreditor Agreement
to be executed by its officers thereunto duly authorized, as of the date
first above written.
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/
------------------------------
Title:
Interest rate protection agreement between Warnaco Inc. and Morgan Guaranty
Trust Company of New York dated May 4, 2000
IN WITNESS WHEREOF, the party to the below-specified swap
agreements has caused this Intercreditor Agreement to be executed by its
officers thereunto duly authorized, as of the date first above written.
SOCIETE GENERALE
By: /s/
------------------------------
Title:
ISDA Master Agreement between Societe Generale and Warnaco Inc. dated as of
March 19, 1998
IN WITNESS WHEREOF, the parties to the below-specified
Credit Agreement have caused this Intercreditor Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
above written.
THE BANK OF NOVA SCOTIA CITICORP USA, INC.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
MORGAN GUARANTY TRUST SOCIETE GENERALE
COMPANY OF NEW YORK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
COMMERZBANK AG, NEW YORK & FLEET NATIONAL BANK
GRAND CAYMAN BRANCHES
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
By: /s/
----------------------------
Title:
THE BANK OF NEW YORK THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
BANK OF AMERICA, N.A. BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
UNICREDITO ITALIANO THE INDUSTRIAL BANK OF JAPAN
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
KBC BANK N.V. HSBC BANK USA
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
MERITA BANK PLC DEN DANSKE BANK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
STANDARD CHARTERED BANK SUN TRUST BANK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
WACHOVIA BANK, N.A. BANK LEUMI USA
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
U.S.$500,000,000 Sixth Amended and Restated Credit Agreement, dated as of
November 17, 1999, among Warnaco Inc., Designer Holdings, Ltd., those
wholly-owned domestic subsidiaries designated therein as Warnaco sub
borrowers, Warnaco (HK) Ltd., Warnaco B.V., Warnaco Netherlands B.V. and
Warnaco Holland B.V., The Warnaco Group, Inc., as guarantor, the banks and
other financial institutions from time to time party thereto as lenders,
Societe Generale, as documentation agent, Citicorp USA, Inc., as
syndication agent, Scotiabank, as administrative agent, and Scotiabank and
SSBI, as co-lead arrangers and co-book managers
IN WITNESS WHEREOF, the parties to the below-specified
Credit Agreement have caused this Intercreditor Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
above written.
THE BANK OF NOVA SCOTIA CITICORP USA, INC.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
MORGAN GUARANTY TRUST SOCIETE GENERALE
COMPANY OF NEW YORK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
COMMERZBANK AG, FLEET BANK, N.A.
NEW YORK BRANCH
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
SAKURA BANK SUMMIT BANK
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
THE BANK OF HAWAII
By: /s/
----------------------------
Title:
U.S. $600,000,000 364-Day Credit Agreement, dated as of November 17, 1999,
among Warnaco Inc., as borrower, The Warnaco Group, Inc., the banks and
other financial institutions from time to time party thereto as initial
lenders, Scotiabank and SSBI as co-lead arrangers and co-book managers,
Citicorp USA, Inc., as syndication agent, Morgan Guaranty Trust Company of
New York, as documentation agent, Scotiabank, as administrative agent -
IN WITNESS WHEREOF, the parties to the below-specified
Credit Agreement have caused this Intercreditor Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first
above written.
SOCIETE GENERALE CITICORP USA, INC.
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
THE BANK OF NOVA SCOTIA COMMERZBANK AG
By: /s/ By: /s/
---------------------------- -----------------------------
Title: Title:
FRF $370,000,000 Credit Agreement, dated July 9, 1996, between Warnaco Inc.
and the nominated subsidiaries (as defined therein) as borrowers, The
Warnaco Group, Inc., as guarantor, Societe Generale, as managing and
administrative Agent, and the banks and other financial institutions from
time to time party thereto as lenders
IN WITNESS WHEREOF, the parties to the below-specified
Facility Agreement have caused this Intercreditor Agreement to be executed
by their respective officers thereunto duly authorized, as of the date
first above written.
CITIBANK, N.A.
By: /s/
-----------------------------
Title:
CITICORP USA, INC.
By: /s/
-----------------------------
Title:
SCOTIABANK EUROPE plc
By: /s/
-----------------------------
Title:
(pound)9,000,000 Facility Agreement, dated as of May 15, 1995, among
Warner's (United Kingdom) Limited, as borrower, Scotiabank Europe plc, as
security agent, Citicorp USA, Inc., as administrative agent, Scotiabank
Europe plc, as overdraft bank, Citibank, N.A. as issuing bank, the
financial institutions named in the first schedule as banks, Warnaco Inc.
and The Warnaco Group, Inc., as U.S. guarantors, and the companies named in
the second schedule as European guarantors (Warnaco GmbH, Warner's Aiglon
S.A., Warner's (Eire) Teoranta, Warner's Lenceria Femenina, S.A. and
Warner's Belgium S.A.)
IN WITNESS WHEREOF, the party to the below-specified
Credit Agreement has caused this Intercreditor Agreement to be executed by
its officers thereunto duly authorized, as of the date first above written.
THE BANK OF NOVA SCOTIA
By: /s/
-----------------------------
Title:
Canadian Dollar 30,000,000 Amended and Restated Credit Agreement dated as
of September 24, 1996 between Warnaco of Canada Limited - Warnaco du Canada
Limitee, as borrower, and The Bank of Nova Scotia, as lender
IN WITNESS WHEREOF, the party to the below-specified Line
of Credit Letter has caused this Intercreditor Agreement to be executed by
its officers thereunto duly authorized, as of the date first above written.
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/
-----------------------------
Title:
U.S. $35,000,000 uncommited short term line of credit letter between
Warnaco Inc. and The Dai-Ichi Kangyo Bank, Ltd.
IN WITNESS WHEREOF, the party to the below-specified
Letter of Credit Facility Letter has caused this Intercreditor Agreement to
be executed by its officers thereunto duly authorized, as of the date first
above written.
CITIBANK, N.A.
By: /s/
-----------------------------
Title:
U.S. $91,700,000 uncommitted letter of credit facility letter dated August
4, 1999 between Citibank and Warnaco (HK) Ltd
IN WITNESS WHEREOF, the party to the below-specified
Letter of Credit Facility Letter has caused this Intercreditor Agreement to
be executed by its officers thereunto duly authorized, as of the date first
above written.
BANK OF AMERICA, N.A.
By: /s/
-----------------------------
Title:
U.S. $75,000,000 uncommitted letter of credit facility letter dated January
10, 2000 between Bank of America, N.A. and Warnaco (HK) Ltd
IN WITNESS WHEREOF, the party to the below-specified
Letter of Credit Facility Letter has caused this Intercreditor Agreement to
be executed by its officers thereunto duly authorized, as of the date first
above written.
STANDARD CHARTERED BANK
By: /s/
-----------------------------
Title:
U.S. $27,000,000 uncommitted letter of credit facility letter dated
December 29, 1999 between Standard Chartered Bank and Warnaco (HK) Ltd.
IN WITNESS WHEREOF, the party to the below-specified
Letter of Credit Facility Letter has caused this Intercreditor Agreement to
be executed by its officers thereunto duly authorized, as of the date first
above written.
THE BANK OF EAST ASIA, LIMITED
By: /s/
-----------------------------
Title:
U.S. $10,000,000 uncommitted letter of credit facility letter dated
September 13, 1996 between The Bank of East Asia, Limited and Warnaco (HK)
Ltd
IN WITNESS WHEREOF, the party to the below-specified
Overdraft Facility Letter has caused this Intercreditor Agreement to be
executed by its officers thereunto duly authorized, as of the date first
above written.
THE BANK OF NOVA SCOTIA
By: /s/
-----------------------------
Title:
U.S. $6,000,000 uncommitted overdraft facility letter dated August 24, 1999
between The Bank of Nova Scotia, Hong Kong Branch and Warnaco (HK) Ltd
IN WITNESS WHEREOF, the party to the below-specified
Overdraft Agreement has caused this Intercreditor Agreement to be executed
by its officers thereunto duly authorized, as of the date first above
written.
SOCIETE GENERALE
By: /s/
-----------------------------
Title:
20,000,000 Austrian shillings Societe Generale Austria overdraft agreement
dated July 26, 1999
IN WITNESS WHEREOF, the party to the below-specified
Overdraft Facility Letter has caused this Intercreditor Agreement to be
executed by its officers thereunto duly authorized, as of the date first
above written.
KBC BANK NV
By: /s/
-----------------------------
Title:
35,000,000 Belgian francs overdraft facility letter dated December 2, 1998
among Warner's Company Belgium S.A., Donatex - Warnaco S.A. and KBC Bank
IN WITNESS WHEREOF, the party to the below-specified
Overdraft Agreement has caused this Intercreditor Agreement to be executed
by its officers thereunto duly authorized, as of the date first above
written.
SOCIETE GENERALE
By: /s/
-----------------------------
Title:
4,000,000 Deutsche marks Societe Generale Germany overdraft agreement dated
March 21, 2000
IN WITNESS WHEREOF, the party to the below-specified
Credit Line Letter has caused this Intercreditor Agreement to be executed
by its officers thereunto duly authorized, as of the date first above
written.
CREDITO ITALIANO
By: /s/
-----------------------------
Title:
2,500,000,000 Italian Lire credit line letter dated July 9, 1998 between
Warnaco S.r.l. Milano and Credito Italiano
IN WITNESS WHEREOF, the party to the below-specified
Credit Arrangement Letter has caused this Intercreditor Agreement to be
executed by its officers thereunto duly authorized, as of the date first
above written.
SOCIETE GENERALE
By: /s/
-----------------------------
Title:
U.S. $6,000,000 short term multi purpose credit arrangement letter dated
October 29, 1997 between Warnaco B.V. and Societe Generale
IN WITNESS WHEREOF, the party to the below-specified
Credit Agreement has caused this Intercreditor Agreement to be executed by
its officers thereunto duly authorized, as of the date first above written.
SOCIETE GENERALE, Madrid Branch
By: /s/
-----------------------------
Title:
FRF 7,500,000 Revolving Line of Credit Agreement dated October 31, 1996
between Warner's Lenceria Femenina, S.A., as borrower, and Societe Generale
acting through its Madrid Branch, as lender, as amended by the Amendment
Agreement dated July 31, 1998 between Warnaco Intimo S.A., the companies
and corporations referred to therein as guarantors and Societe Generale
acting through its Madrid Branch
IN WITNESS WHEREOF, the party to the below-specified
Credit Agreement has caused this Intercreditor Agreement to be executed by
its officers thereunto duly authorized, as of the date first above written.
SOCIETE GENERALE BANK AND TRUST
By: /s/
-----------------------------
Title:
FRF 7,500,000 Revolving Line Credit Agreement dated October 31, 1996 as
amended by the Amendment Agreement dated July 31, 1998 between
Lintex-Warnaco S.A., as borrower, the companies and corporations referred
to therein as guarantors and Societe Generale Bank and Trust, as lender
IN WITNESS WHEREOF, the party to the below-specified
Equity Forward Purchase Agreement has caused this Intercreditor Agreement
to be executed by its officers thereunto duly authorized, as of the date
first above written.
SCOTIA CAPITAL (USA) INC.
By: /s/
-----------------------------
Title:
Equity Forward Purchase Agreement dated December 10, 1999 between Scotia
Capital (USA) Inc. and The Warnaco Group, Inc
IN WITNESS WHEREOF, the party to the below-specified
Equity Forward Purchase Agreement has caused this Intercreditor Agreement
to be executed by its officers thereunto duly authorized, as of the date
first above written.
SUNTRUST BANK
By: /s/
-----------------------------
Title:
Equity Forward Purchase Agreement dated as of February 10, 2000 between Sun
Trust Bank and The Warnaco Group, Inc
SCHEDULE II
EXISTING FACILITIES
A. AMENDING FACILITIES
1. U.S. $600,000,000 Amended and Restated Credit Agreement, dated as
of November 17, 1999, among Warnaco Inc., as Borrower, The Warnaco
Group, Inc, the banks and other financial institutions from time
to time party thereto as Initial Lenders, Scotiabank and SSBI, as
co-lead arrangers and co-book managers, Citicorp USA, Inc., as
Syndication Agent, Commerzbank AG (New York Branch), as
Documentation Agent and Scotiabank, as Administrative Agent,
Competitive Bid Agent, Swing Line Bank and Issuing Bank, as
amended to the date hereof.
2. U.S.$450,000,000 Five-Year Credit Agreement, dated as of November
17, 1999, among Warnaco Inc., as Borrower, The Warnaco Group,
Inc., the banks and other financial institutions from time to time
party thereto as Initial Lenders, Scotiabank and SSBI, as co-lead
arrangers and co-book managers, Citicorp USA, Inc., as Syndication
Agent, Societe Generale and Commerzbank AG, as Documentation
Agents, Bank of America N.A. and the Dai-Ichi Kangyo Bank, Ltd.,
as Co-Agents, and Scotiabank, as Administrative Agent, Competitive
Bid Agent and Swing Line Bank, as amended to the date hereof.
3. FRF 480,000,000 Revolving Credit, Guarantee and Overdraft
Agreement, dated August 14, 1996, between the companies set forth
in Schedule 1 thereto as Borrowers, the companies set forth in
Schedule 2 as Guarantors, Societe Generale, as Arranging Bank,
Managing Agent, Administrative Agent and Overdraft Bank and the
banks and other financial institutions from time to time party
thereto as Lenders, as amended by a Supplement Agreement dated
April 17, 1998 and further amended to the date hereof (the "FRENCH
FRANC REVOLVING FACILITY").
4. U.S. $21,500,000 Loan Agreement between Warnaco Inc., as Borrower
and KBC Bank N.V. dated as of July 31, 1998 (the "KBC TERM
FACILITY").
5. Interest rate protection agreements with Citibank, N.A., The Bank
of Nova Scotia and Morgan Guaranty Trust Company of New York (the
"RATE PROTECTION FACILITIES").
6. ISDA Master Agreements with Societe Generale relating to foreign
exchange.
7. U.S.$500,000,000 Sixth Amended and Restated Credit Agreement,
dated as of November 17, 1999, among Warnaco Inc., as U.S.
Borrower, Designer Holdings, Ltd., as Sub Borrower, those
wholly-owned domestic subsidiaries designated therein as Warnaco
Sub Borrowers, Warnaco (HK) Ltd., Warnaco B.V., Warnaco
Netherlands B.V. and Warnaco Holland B.V., as Foreign Borrowers,
The Warnaco Group, Inc., as Guarantor, the banks and other
financial institutions from time to time party thereto as Lenders,
Societe Generale, as Documentation Agent, Citicorp USA, Inc., as
Syndication Agent, Scotiabank, as Administrative Agent, and
Scotiabank and SSBI, as co-lead arrangers and co-book managers, as
amended to the date hereof (the "TRADE CREDIT FACILITY").
B. EXTENDING FACILITIES
1. U.S. $600,000,000 364-Day Credit Agreement, dated as of November
17, 1999, among Warnaco Inc., as Borrower, The Warnaco Group,
Inc., the banks and other financial institutions from time to time
party thereto as Initial Lenders, Scotiabank and SSBI as co-lead
arrangers and co-book managers, Citicorp USA, Inc., as Syndication
Agent, Morgan Guaranty Trust Company of New York, as Documentation
Agent, Scotiabank, as Administrative Agent, as amended to the date
hereof (the "BRIDGE FACILITY").
2. FRF $370,000,000 Credit Agreement, dated July 9, 1996, between
Warnaco Inc. and the Nominated Subsidiaries (as defined therein)
as Borrowers, The Warnaco Group, Inc., as Guarantor, Societe
Generale, as Managing and Administrative Agent, and the banks and
other financial institutions from time to time party thereto as
Lenders. Deed of Amendment, made November 4, 1996, to a FRF
370,000,000 Credit Agreement for Warnaco Inc., as amended to the
date hereof (collectively, "FRENCH FRANC TERM FACILITY").
3. (pound)9,000,000 Facility Agreement, dated as of May 15, 1995,
among Warner's (United Kingdom) Limited, as Borrower, Scotiabank
Europe plc, as Security Agent, Citicorp USA, Inc., as
Administrative Agent, Scotiabank Europe plc, as Overdraft Bank,
Citibank, N.A. as Issuing Bank, the financial institutions named
in the First Schedule as Banks, Warnaco Inc. and The Warnaco
Group, Inc., as U.S. Guarantors, and the Companies named in the
Second Schedule as European Guarantors (Warnaco GmbH, Warner's
Aiglon S.A., Warner's (Eire) Teoranta, Warner's Lenceria Femenina,
S.A. and Warner's Belgium S.A.), as amended to the date hereof.
4. Canadian Dollar 30,000,000 Amended and Restated Credit Agreement
dated as of September 24, 1996 between Warnaco of Canada Limited -
Warnaco du Canada Limitee, as Borrower, and The Bank of Nova
Scotia, as Lender (the "CANADIAN REVOLVING FACILITY").
5. U.S. $15,000,000 Credit Agreement dated as of October 6, 2000
among The Warnaco Group, Inc., Warnaco Inc. and The Dai-Ichi
Kangyo Bank, Ltd. (the "SPECIFIED FACILITY").
6. U.S. $91,700,000 uncommitted Letter of Credit Facility letter
dated August 4, 1999 between Citibank and Warnaco (HK) Ltd.
7. U.S. $75,000,000 uncommitted Letter of Credit Facility letter
dated January 10, 2000 between Bank of America, N.A. and Warnaco
(HK) Ltd.
8. U.S. $27,000,000 uncommitted Letter of Credit Facility letter
dated December 29, 1999 between Standard Chartered Bank and
Warnaco (HK) Ltd.
9. U.S. $10,000,000 uncommitted Letter of Credit Facility letter
dated September 13, 1996 between The Bank of East Asia, Limited
and Warnaco (HK) Ltd.
10. U.S. $6,000,000 uncommitted Overdraft Facility letter dated August
24, 1999 between The Bank of Nova Scotia, Hong Kong Branch and
Warnaco (HK) Ltd.
11. 20,000,000 Austrian shillings Societe Generale Austria overdraft.
12. 35,000,000 Belgian francs Overdraft Facility letter dated December
2, 1998 among Warner's Company Belgium S.A., Donatex - Warnaco
S.A. and KBC Bank.
13. 4,000,000 Deutsche marks Societe Generale Germany overdraft.
14. 2,500,000,000 Italian Lire Credit Line letter dated July 9, 1998
between Warnaco S.r.l. Milano and Credito Italiano.
15. U.S. $6,000,000 short term Multi Purpose Credit arrangement letter
dated October 29, 1997 between Warnaco B.V. and Societe Generale.
16. FRF 7,500,000 Revolving Line of Credit Agreement dated October 31,
1996 between Warner's Lenceria Femenina, S.A., as Borrower, and
Societe Generale acting through its Madrid Branch, as Lender, as
amended by the Amendment Agreement dated July 31, 1998 between
Warnaco Intimo S.A., the Companies and Corporations referred to
therein as Guarantors and Societe Generale acting through its
Madrid Branch.
17. FRF 7,500,000 Revolving Line Credit Agreement dated October 31,
1996 as amended by the Amendment Agreement dated July 31, 1998
between Lintex-Warnaco S.A., as Borrower, the Companies and
Corporations referred to therein as Guarantors and Societe
Generale Bank and Trust, as Lender.
18. Equity Forward Purchase Agreement dated December 10, 1999 between
Scotia Capital (USA) Inc. and The Warnaco Group, Inc., as amended,
modified or otherwise supplemented to the date hereof, including,
without limitation, as amended pursuant to the Memorandum of
Understanding dated September 19, 2000 and as in effect on the
Effective Date, between Scotia Capital (USA) Inc. and The Warnaco
Group, Inc., and together with the Modification Note and each
Subsequent Note (each as defined in said Memorandum of
Understanding).
19. Equity Forward Purchase Agreement dated as of February 10, 2000
between Sun Trust Bank and The Warnaco Group, Inc., as amended,
modified or otherwise supplemented to the date hereof, including,
without limitation, as amended pursuant to the Memorandum of
Understanding dated September 19, 2000 and as in effect on the
Effective Date, between SunTrust Bank and The Warnaco Group, Inc.,
and together with the Modification Note and each Subsequent Note
(each as defined in said Memorandum of Understanding).
