<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended May 3, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number: 33-86154
BRYLANE INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3794198
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
463 Seventh Avenue
New York, NY 10018
(Address of principal executive offices)
Registrant's telephone number, including area code:
(212) 613-9500
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
The number of shares of the registrant's common stock outstanding as of June
5, 1997 was 19,471,445 shares.
================================================================================
<PAGE>
BRYLANE INC.
Form 10-Q
For the Quarterly Period Ended
May 3, 1997
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
Part I. Financial Information
Item 1. Financial Statements
a) Report of Independent Accountants 3
b) Consolidated Balance Sheets
February 1, 1997 and May 3, 1997 (unaudited) 4
c) Consolidated Statements of Income (unaudited)
Thirteen weeks ended May 4, 1996 and May 3, 1997 5
d) Consolidated Statements of Cash Flows (unaudited)
Thirteen weeks ended May 4, 1996 and May 3, 1997 6
e) Consolidated Statements of Partnership/Stockholder's Equity
February 3, 1996, February 1, 1997 and thirteen weeks
ended May 3, 1997 (unaudited) 7
f) Notes to Unaudited Consolidated Financial Statements 8
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 12
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K 20
Signature 21
</TABLE>
Page 2
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
Brylane Inc.
We have reviewed the accompanying consolidated balance sheet of Brylane Inc. as
of May 3, 1997 and the related consolidated statements of income and cash flows
for the thirteen weeks then ended. These financial statements are the
responsibility of the Company's management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the accompanying financial statements for them to be in conformity
with generally accepted accounting principles.
/s/ Coopers & Lybrand L.L.P.
Indianapolis, Indiana
June 6, 1997
Page 3
<PAGE>
PART I - FINANCIAL INFORMATION
- ------------------------------
ITEM 1. - FINANCIAL STATEMENTS
- ------------------------------
BRYLANE INC.
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
February 1, May 3,
1997 1997
---------- ----------
(unaudited)
ASSETS
------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents.................................................. $ 3,285 $ 34,978
Accounts receivable, deferred billing (net)................................ 22,750 10,722
Accounts receivable, other................................................. 32,107 38,386
Inventories................................................................ 168,821 159,264
Paper inventory............................................................ 9,790 8,846
Catalog costs.............................................................. 31,222 26,382
Other...................................................................... 6,252 5,493
--------- ---------
TOTAL CURRENT ASSETS 274,227 284,071
Property and equipment, net...................................................... 75,970 75,858
Organization and deferred financing costs........................................ 11,114 4,358
Intangibles and other assets..................................................... 343,243 340,534
Deferred income taxes............................................................ -- 17,551
Deferred offering costs.......................................................... 680 --
--------- ---------
TOTAL ASSETS $ 705,234 $ 722,372
========= =========
LIABILITIES AND EQUITY
----------------------
CURRENT LIABILITIES:
Accounts payable........................................................... $ 93,928 $ 106,998
Accrued interest........................................................... 8,612 2,832
Accrued expenses........................................................... 45,356 46,197
Income taxes payable....................................................... -- 4,075
Reserve for returns........................................................ 18,603 23,660
Current portion of long-term debt.......................................... 26,000 14,975
--------- ---------
TOTAL CURRENT LIABILITIES 192,499 198,737
Long-term debt................................................................... 401,362 301,074
Other long-term liabilities...................................................... 6,010 6,846
--------- ---------
TOTAL LIABILITIES 599,871 506,657
Convertible redeemable preferred stock........................................... 1,500 1,500
Partnership/stockholders' equity:
General partner of Brylane, L.P., 2,562,500 units.......................... 25,625 --
Limited partners of Brylane, L.P., 12,908,945 units at February 1, 1997 and
May 3, 1997............................................................ 159,855 --
Common stock, $.01 par value 40,000,000 shares authorized;
19,471,445 shares issued and outstanding............................... -- 195
Additional paid in capital................................................. -- 290,161
Reduction for predecessor cost - carryover basis........................... (152,067) (152,067)
Loans to management investors.............................................. (2,490) (2,490)
Accumulated earnings....................................................... 72,940 78,416
--------- ---------
Total partnership/stockholders' equity........................ 103,863 214,215
--------- ---------
TOTAL LIABILITIES AND EQUITY $ 705,234 $ 722,372
========= =========
</TABLE>
The accompanying notes are an integral part of the unaudited consolidated
financial statements.
Page 4
<PAGE>
BRYLANE INC.
CONSOLIDATED STATEMENTS OF INCOME
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Thirteen Weeks Ended
--------------------
May 4, May 3,
1996 1997
-------- --------
<S> <C> <C>
Net sales..................................................... $150,680 $328,801
Cost of goods sold...................................... 72,662 169,047
-------- --------
Gross margin.................................................. 78,018 159,754
Operating expenses:
Catalog and advertising................................. 47,518 83,339
Fulfillment............................................. 8,274 28,070
Support services........................................ 10,544 22,010
Intangibles and organization cost amortization.......... 1,409 2,732
-------- --------
Total operating expenses...................................... 67,745 136,151
-------- --------
Operating income.............................................. 10,273 23,603
Interest expense, net......................................... 5,556 7,528
-------- --------
Income before income taxes
and extraordinary charge................................ 4,717 16,075
Provision for income taxes.................................... 29 6,489
-------- --------
Income before extraordinary charge............................ 4,688 9,586
Extraordinary charge related to early
retirement of debt, net of tax.......................... -- 4,110
-------- --------
Net income.................................................... $ 4,688 $ 5,476
======== ========
Primary earnings per share:
Income per share before extraordinary charge............ $ 0.35 $ 0.51
Extraordinary charge per share.......................... -- $ 0.22
-------- --------
Net income per share.................................... $ 0.35 $ 0.29
======== ========
Weighted average shares outstanding..................... 13,418 18,850
Supplemental data (Note 7):
Historical income before provision for
income taxes and extraordinary charge.............. $ 4,717 $ 16,075
Supplemental provision for income taxes................. 1,745 5,948
-------- --------
Supplemetal income before extraordinary charge.......... 2,972 10,127
Extraordinary charge related to early
retirement of debt, net of tax..................... -- 4,110
-------- --------
Supplemental net income................................. $ 2,972 $ 6,017
======== ========
Supplemental earnings per share......................... $ 0.22 $ 0.32
======== ========
</TABLE>
The accompanying notes are an integral part of the unaudited consolidated
financial statements.
Page 5
<PAGE>
BRYLANE INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Thirteen Weeks Ended
--------------------
May 4, May 3,
1996 1997
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income............................................................... $ 4,688 $ 5,476
Impact of other operating activities on cash flows:
Depreciation......................................................... 1,072 2,526
Non-recurring inventory charge....................................... -- 2,486
Extraordinary charge related to early retirement of debt............. -- 6,524
Non-cash compensation expense........................................ -- 175
Amortization:
Intangibles and organization costs.............................. 1,409 2,732
Deferred financing costs (included in interest expense)......... 367 420
Discount on notes (included in interest expense)................ 24 24
Changes in operating assets and liabilities:
Accounts receivable............................................. 542 5,749
Inventories..................................................... (6,733) 9,557
Catalog costs and paper inventory............................... 2,457 5,784
Accounts payable and accrued expenses........................... 11,847 14,248
Accrued interest................................................ (2,929) (5,780)
Income taxes payable............................................ -- 4,075
Other assets and liabilities.................................... 2,607 5,330
------- ---------
Net cash provided by operating activities...................................... 15,351 59,326
------- ---------
INVESTING ACTIVITIES:
Capital expenditures..................................................... (521) (4,047)
------- ---------
Net cash used in investing activities.......................................... (521) (4,047)
------- ---------
FINANCING ACTIVITIES:
Payments on 1996 and 1997 bank credit facility........................... (3,374) (293,000)
Proceeds from issuance of 1997 Bank Credit Facility...................... -- 181,663
Proceeds from initial public offering.................................... -- 96,000
Offering fees and expenses............................................... -- (8,046)
Debt issuance fees and expenses.......................................... -- (203)
Tax distributions to partners of Brylane, L.P............................ (1,246) --
Proceeds from the sale, net of repurchase, of partnership interests,
net of management notes.............................................. 77 --
------- ---------
Net cash used in financing activities.......................................... (4,543) (23,586)
------- ---------
Cash and cash equivalents, at beginning of year................................ 7,469 3,285
------- ---------
Cash and cash equivalents, at end of period.................................... $17,756 $ 34,978
======= =========
Supplemental disclosure of cash flow information:
Interest paid............................................................ $ 8,129 $ 14,070
======= =========
</TABLE>
Income taxes paid during each of the periods presented were not material.
The accompanying notes are an integral part of the unaudited consolidated
financial statements.
Page 6
<PAGE>
BRYLANE INC.
CONSOLIDATED STATEMENTS OF PARTNERSHIP/STOCKHOLDERS' EQUITY
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
General Partner
Limited Partners Common Stock Additional
---------------------------- ---------------------------- Paid in
Units Amount Shares Amount Capital
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Balance, February 3, 1996.......................... 12,902,500 $ 130,829
Net income...................................... -- -- -- -- --
Sale of units................................... 2,573,945 51,441 -- -- --
Repurchase of units............................. (5,000) (60) -- -- --
Exchange of stock options....................... -- 3,270 -- -- --
Tax distributions payable to partners........... -- -- -- -- --
------------ ------------ ------------ ------------ ------------
Balance, February 1, 1997.......................... 15,471,445 185,480
Net income...................................... -- -- -- -- --
Proceeds from Initial Public Offering........... -- -- 4,000,000 $ 40 $ 95,960
Initial Public Offering expenses................ -- -- -- -- (8,850)
Exchange of partnership units for common stock.. (15,471,445) (185,480) 15,471,445 155 185,325
Recognition of deferred tax asset............... -- -- -- -- 17,551
Exchange of stock options....................... -- -- -- -- 175
------------ ------------ ------------ ------------ ------------
Balance, May 3, 1997(unaudited).................... 0 $ 0 19,471,445 $195 $290,161
============ ============ ============ ============ ============
<CAPTION>
Reduction for
Predecessor
Cost - Loans to
Carryover Management Accumulated
Basis Investors Earnings Total
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Balance, February 3, 1996.......................... $(152,067) $(2,515) $50,940 $ 27,187
Net income...................................... -- -- 26,952 26,952
Sale of units................................... -- 25 -- 51,466
Repurchase of units............................. -- -- -- (60)
Exchange of stock options....................... -- -- -- 3,270
Tax distributions payable to partners........... -- -- (4,952) (4,952)
------------ ------------ ------------ ------------
Balance, February 1, 1997.......................... (152,067) (2,490) 72,940 103,863
Net income...................................... -- -- 5,476 5,476
Proceeds from Initial Public Offering........... -- -- -- 96,000
Initial Public Offering expenses................ -- -- -- (8,850)
Exchange of partnership units for common stock.. -- -- -- --
Recognition of deferred tax asset............... -- -- -- 17,551
Exchange of stock options....................... -- -- -- 175
------------ ------------ ------------ ------------
Balance, May 3, 1997(unaudited).................... $(152,067) $(2,490) $78,416 $214,215
============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of the unaudited consolidated
financial statements.
Page 7
<PAGE>
BRYLANE INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(1) NATURE OF OPERATIONS:
Brylane Inc. ("Brylane" or the "Company") is a leading catalog retailer
of value-priced apparel, with a focused portfolio of catalogs that includes Lane
Bryant, Roaman's, Jessica London and KingSize serving the special size market,
and Lerner, Chadwick's of Boston, Sue Brett and Bridgewater, serving the women's
regular-size apparel market. Brylane also markets certain of its catalogs under
the "Sears" name to customers of Sears, Roebuck and Co. under an exclusive
licensing arrangement with Sears Shop at Home Services, Inc.
Brylane's merchandising strategy is to provide value-priced, private
label and branded apparel with a consistent quality and fit, to concentrate on
apparel with limited fashion risk, and to offer a broader selection of sizes,
styles and colors than can be found at most retail stores and in other competing
catalogs. Each of Brylane's catalogs offers its customers basic, traditional and
classic apparel.
(2) ORGANIZATION AND BASIS OF FINANCIAL STATEMENT PRESENTATION:
On February 26, 1997, in connection with the initial public offering of
Brylane Inc. ("Initial Public Offering"), Brylane, L.P. (the "Partnership")
became a wholly-owned subsidiary of Brylane Inc. pursuant to the First Amended
and Restated Incorporation and Exchange Agreement (the "Exchange Agreement"),
whereby certain affiliates of Freeman Spogli & Co. ("FS&Co."), The Limited, Inc.
("The Limited"), M&P Distributing Co., WearGuard Corporation ("WearGuard"),
Leeway & Co., and NYNEX exchanged their shares of common stock of VP Holding
Corporation or ownership interests in the Partnership, except for the TJX
noteholder ("TJX Noteholder"), for 14,926,778 shares of $.01 par value common
stock ("Common Stock") of Brylane Inc. (the "Exchange Transaction").
Additionally, pursuant to their respective stock subscription agreements with VP
Holding Corporation, members of management and others exchanged their shares of
common stock of VP Holding Corporation for an aggregate of 544,667 shares of
Common Stock of Brylane Inc. In connection with the Exchange Transaction,
Brylane, L.P. retained all of its assets, operations and liabilities.
On February 26, 1997, Brylane Inc. offered 4,000,000 shares of Common Stock
to the public through its Initial Public Offering. Brylane Inc. is a registrant
pursuant to Section 12 of the Exchange Act and is thereby required to provide
continuous financial reporting to its stockholders. As discussed above, Brylane
Inc. does not maintain any separate assets, operations or liabilities, except
for assets and liabilities related to income taxes, as all activities are
conducted within Brylane, L.P. Therefore, the historical balance sheet as of
February 1, 1997 and the historical statements of income and cash flows for the
thirteen weeks ended May 3, 1996 of Brylane, L.P. are included herein for
comparative purposes.
The consolidated financial statements of Brylane Inc. include the accounts
of VP Holding Corporation and its wholly-owned sudsidiaries, VGP Corporation and
VLP Corporation and Brylane L.P. and its wholly-owned subsidiaries and
partnerships, including Brylane Capital Corp., B.L. Management Services, Inc.,
B.L. Catalog Distribution, Inc., B.L. Management Services Partnership, B.L.
Catalog Distribution Partnership, B.N.Y. Service Corp., K.S. Management
Services, Inc., C.O.B. Management Services, Inc. and Chadwick's Tradename Sub,
Inc. These entities are collectively referred to as Brylane or the Company.
Accounts between the consolidated entities have been eliminated. Each of the
wholly-owned subsidiaries and partnerships of Brylane, L.P. has guaranteed the
10% Senior Subordinated Notes due 2003 (the "Notes"). Separate financial
statements of these subsidiary guarantors have not been included as the
subsidiaries guarantee the Notes on a full, unconditional, and joint and several
basis. Management believes that the aggregate assets, liabilities, earnings, and
equity of the subsidiary guarantors are currently, both on an individual and a
combined basis, inconsequential to Brylane on a consolidated basis, and
therefore, that information provided in separate financial statements of the
subsidiary guarantors is not deemed material to the readers of the financial
statements. Financial statements of Brylane, L.P. have been filed with the
Securities and Exchange Commission under File Number 33-69532.
Page 8
<PAGE>
BRYLANE INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(3) ACQUISITION:
In December 1996, Brylane, L.P. completed the acquisition of certain assets
of the Chadwick's of Boston catalog division ("Chadwick's") of Chadwick's, Inc.,
a wholly-owned subsidiary of The TJX Companies ("TJX") (the "Chadwick's
Acquisition"). Chadwick's is a catalog business devoted to selling off-price
women's career, casual and social apparel. The Chadwick's Acquisition included
the purchase of inventory, property, plant and equipment, customer lists,
trademarks, goodwill and the assumption of certain liabilities relating to the
business by the Partnership. In addition, the parties entered into a services
agreement, as well as an inventory purchase agreement pursuant to which TJX has
committed to purchase certain amounts of Chadwick's excess inventory through
January 2000.
Brylane paid to TJX $222.7 million (subject to certain post - closing
adjustments) and issued to TJX a $20.0 million Convertible Redeemable Note due
2006. In order to fund a portion of the cash paid in connection with the
Chadwick's Acquisition and to repay its existing indebtedness under its 1993
bank credit facility, the Partnership entered into the 1996 Bank Credit
Facility. In addition, the Partnership received an aggregate of $51.3 million in
new equity from certain affiliates of FS&Co., Leeway & Co., NYNEX and WearGuard.
On May 16, 1997, Brylane received a preliminary cash purchase price
adjustment of $28.8 million from TJX. The allocation of the purchase price is
not yet final.
(4) LONG-TERM DEBT:
In connection with the Chadwick's Acquisition, the Partnership entered
into a Credit Agreement dated December 9, 1996 among Brylane, Morgan Guaranty
Trust Company of New York ("Morgan Guaranty"), as administrative agent, Merrill
Lynch Capital Corporation ("Merrill Lynch"), as documentation agent, and the
other lenders party thereto, and guaranteed by each of the Company's
subsidiaries (the "1996 Bank Credit Facility"), which consisted of (i) a $213.0
million five-year term loan, (ii) a $70.0 million six-year and three-month term
loan, and (iii) a $125.0 million five-year revolving credit facility with a
$75.0 million sublimit for letters of credit. The proceeds of the term loans of
the 1996 Bank Credit Facility were used to fund a portion of the cash paid upon
the closing of the Chadwick's Acquisition (including related fees and expenses)
as well as to repay Brylane's then existing indebtedness under its 1993 bank
credit facility. In connection with Brylane Inc.'s Initial Public Offering on
February 26, 1997, and the use of the net proceeds received therefrom and
contributed by Brylane Inc. to the Partnership, the Company repaid $89.3 million
in indebtedness under its 1996 Bank Credit Facility. In addition, the Company
made $12.0 million of prepayments on the 1996 Bank Credit Facility during the
thirteen weeks ended May 3, 1997.
On April 30, 1997, the Partnership entered into a credit agreement among
Brylane, Morgan Guaranty, as administrative agent, Merrill Lynch, as
documentation agent, and the lenders party thereto, and guaranteed by each of
the Company's subsidiaries (the "1997 Bank Credit Facility") which consists of
(i) a $111.7 million four-year nine-month term loan (the "Tranche A Term Loan"),
(ii) a $70.0 million five-year and ten-month term loan (the "Tranche B Term
Loan", and collectively with the Tranche A Term Loan, the "Term Loans"), and
(iii) a $125.0 million four-year nine-month revolving credit facility (the
"Revolving Credit Facility") with a $75.0 million sublimit for letters of
credit. The proceeds of the Term Loans of the 1997 Bank Credit Facility were
used to repay Brylane's existing indebtedness under the 1996 Bank Credit
Facility. The Revolving Credit Facility can be used for letters of credit and
general corporate purposes, including working capital needs. The Term Loans
require scheduled quarterly principal payments over their terms. In addition,
Brylane is obligated to make certain mandatory prepayments of the Term Loans and
the Revolving Credit Facility under certain circumstances. Borrowings under the
Term Loans and the Revolving Credit Facility bear interest at one of two rates
selected by the Partnership (i) a margin over the higher of (A) Morgan
Guaranty's prime rate or (B) the federal funds rate plus 0.5% or (ii) a margin
over LIBOR (as defined) for specified interest periods. The margin for each rate
may vary based on the ratio of the Partnership's net debt to operating cash flow
ratio. The Tranche A Term Loan currently bears interest at LIBOR plus 1.125% and
the Tranche B Term Loan initially bears interest at LIBOR plus 1.625%.
Page 9
<PAGE>
BRYLANE INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Prior to the refinancing, the term loans under the 1996 Bank Credit Facility
bore interest at LIBOR plus 2.0% and LIBOR plus 2.5%, respectively). The Term
Loans begin amortizing on August 2, 1997, with aggregate scheduled principal
payments of $9.9 million during the remainder of fiscal 1997. As a result of
this transaction, the Company recorded an extraordinary charge for the fees
associated with the 1996 Bank Credit Facility in its consolidated statement of
income for the thirteen weeks ended May 3, 1997.
The Company made $10.0 million of prepayments on the Tranche A Term Loan of
the 1997 Bank Credit Facility during the thirteen weeks ended May 3, 1997. As of
May 3, 1997, Brylane had no borrowings under the Revolving Credit Facility and,
after giving effect to the issuance of letters of credit for $39.5 million which
the Company intends to pay through funds generated from operations, had
additional capacity under the Revolving Credit Facility of approximately $85.5
million.
Subsequent to May 3, 1997, the Company prepaid an additional $50.0 million
on the Tranche A Term Loan of the 1997 Bank Credit Facility. Amounts used by the
Company to make such prepayments included the $28.8 million preliminary cash
purchase price adjustment received by the Company from TJX on May 16, 1997 (See
Note (3) of the Notes to the Unaudited Consolidated Financial Statements) and
the remainder came from available funds. As a result of these prepayments, the
remaining balance of the Tranche A Term Loan was reduced to $51.7 million and
the scheduled principal payments for the remainder of fiscal 1997 have been
reduced to $5.4 million.
(5) NET INCOME PER SHARE:
Net income per share is computed based upon the weighted average number of
outstanding common shares, including the effect of stock options based on the
treasury stock method.
(6) INCOME TAXES:
Brylane Inc. accounts for income taxes in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes".
Pursuant to SFAS No. 109, deferred tax assets and liabilities result from
differences between financial reporting and tax basis of assets and liabilities,
measured using enacted tax rates and laws in effect when the differences
reverse. Upon consummation of the Exchange Transaction, Brylane Inc. recorded a
deferred income tax benefit of $17.6 million and during the quarter income tax
expense of $4.1 million.
The deferred tax asset represents the tax effect at current rates of
temporary differences associated with the difference between the book and tax
basis of the partners in their investment in Brylane, L.P., and represents
estimated future tax benefits to Brylane Inc. arising from those assets.
(7) SUPPLEMENTAL NET INCOME AND EARNINGS PER SHARE:
Supplemental net income of Brylane Inc. represents the results of
operations adjusted to reflect a provision for income tax on historical income
before income taxes, which gives effect to the change in the consolidated
entities' tax status to a C-corporation subsequent to the public sale of Brylane
Inc.'s Common Stock. The difference between the proforma income tax rate of 37%
and the federal statutory rate of 35% relates primarily to state income taxes,
net of federal tax benefit.
Supplemental earnings per share of Brylane Inc. represents supplemental net
income divided by the weighted average partnership units outstanding prior to
the Initial Public Offering and the weighted average Common Stock and equivalent
units outstanding thereafter. In accordance with Securities and Exchange
Commission rules, options granted in the one year prior to the filing of the
registration statement related to the Initial Public Offering are included as
outstanding for all periods presented using the treasury stock method assuming
the offering price of $24 per share.
Page 10
<PAGE>
BRYLANE INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(8) RECLASSIFICATIONS:
Certain reclassifications have been made to the consolidated statements of
cash flows for the thirteen weeks ended May 3, 1997 to conform with the
financial statement presentation adopted for the fiscal year ending February 1,
1997. Such reclassifications had no effect on previously reported net income.
(9) UNAUDITED INTERIM FINANCIAL STATEMENTS:
The financial statements as of and for the thirteen weeks ended May 4, 1996
and May 3, 1997 are unaudited and are presented pursuant to the rules and
regulations of the Securities and Exchange Commission. Accordingly, the
financial statements should be read in conjunction with the financial statement
disclosures contained in Brylane Inc.'s Form 10-K for the fiscal year ended
February 1, 1997. In the opinion of management, the accompanying financial
statements reflect all adjustments necessary (which are of a normal recurring
nature, unless separately disclosed) to present fairly the financial position
and results of operations and cash flows for the interim periods presented, but
are not necessarily indicative of the results of operations and cash flows for a
full fiscal year.
Page 11
<PAGE>
BRYLANE INC.
ITEM 2. - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
- -------------------------------------------------------------------------
RESULTS OF OPERATIONS
- ---------------------
As a result of the Chadwick's Acquisition and the application of purchase
accounting related thereto, the Company's gross margin for the thirteen weeks
ended May 3, 1997 reflects a non-recurring inventory charge of $2.5 million
related to the write-up of the Chadwick's inventory. A remaining write-up of
$0.8 million related to the Chadwick's inventory will be charged to cost of
goods sold during the second quarter. In addition, as a result of the formation
of Brylane, L.P. and the related acquisition of the Lane Bryant, Roaman's and
Lerner catalog businesses by certain affiliates of FS&Co. and of The Limited
(the "Brylane Acquisition"), the acquisition by Brylane of the KingSize catalog
division of WearGuard Corporation (the "KingSize Acquisition"), and the
Chadwick's Acquisition and the application of purchase accounting related
thereto, the results of operations for the thirteen weeks ended May 3, 1997
reflect amortization of intangible assets related to the Brylane Acquisition,
the KingSize Acquisition and the Chadwick's Acquisition of $1.1 million, $0.3
million and $1.3 million, respectively.
The Company's results of operations in the future will continue to reflect
the amortization of intangible assets related to the Brylane Acquisition, the
KingSize Acquisition and the Chadwick's Acquisition of $4.2 million per year,
$1.4 million per year and $5.3 million per year, respectively, and step-up
depreciation associated with the write-up of certain fixed assets in connection
with the Brylane Acquisition of $0.4 million per year. Subsequent to May 3,
1997, the Company prepaid $50.0 million on the Tranche A Term Loan of the 1997
Bank Credit Facility (as defined herein). As a result of these prepayments, the
Company's interest expense for the remainder of fiscal 1997 should be reduced.
This Form 10-Q contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933. Such statements are
subject to a number of risks and uncertainties, including among other things,
competition, risks associated with the Sears Agreement, the impact of increases
in costs of postage, paper and printing, control of the Company by FS&Co. and
The Limited, dependence on suppliers, risks generally associated with
acquisitions, and risks related to unionized employees. Actual results in the
future could differ materially from those described in the forward-looking
statements as a result of such risk factors. The Company undertakes no
obligation to publicly release the result of any revisions of these
forward-looking statements that may be made to reflect any future events or
circumstances.
The following discussion should be read in conjunction with the financial
statements and related notes thereto which appear elsewhere in this Form 10-Q
and in conjunction with the Annual Report on Form 10-K for Brylane Inc. as filed
with the Securities and Exchange Commission on May 2, 1997 (File No. 33-86154).
Page 12
<PAGE>
RESULTS OF OPERATIONS
The following tables set forth certain operating data of Brylane Inc. for
the periods indicated.
<TABLE>
<CAPTION>
Thirteen Weeks Ended
--------------------
May 4, 1996 May 3, 1997
----------- -----------
(in thousands)
(unaudited)
<S> <C> <C>
Net sales ........................................... $150,680 $328,801
Gross profit ........................................ 78,018 159,754
Operating expenses:
Catalog and advertising ........................ 47,518 83,339
Fulfillment .................................... 8,274 28,070
Support services ............................... 10,544 22,010
Amortization of acquisitions
intangibles and organization costs ........ 1,409 2,732
-------- --------
Operating income .................................... 10,273 23,603
Add back: Non-recurring inventory
charge(1) ................................. -- 2,486
Add back: Amortization of acquisitions
intangibles and organization costs(2)...... 1,409 2,732
Add back: Step-up depreciation(3) .............. 92 92
Add back: Non-cash compensation
expense(4) ................................ -- 175
-------- --------
Operating income before acquisitions related
and non-recurring adjustments .............. $ 11,774 $ 29,088
======== ========
</TABLE>
The following table sets forth certain operating data of Brylane Inc.
expressed as a percentage of net sales for the period indicated.
<TABLE>
<CAPTION>
Thirteen Weeks Ended
--------------------
May 4, 1996 May 3, 1997
----------- -----------
<S> <C> <C>
Net sales ..................................... 100.0% 100.0%
Gross profit .................................. 51.8 48.6
Operating expenses:
Catalog and advertising .................. 31.6 25.3
Fulfillment .............................. 5.5 8.6
Support services ......................... 7.0 6.7
Amortization of acquisitions
intangibles and organization costs .. 0.9 0.8
--- ---
Operating income .............................. 6.8 7.2
Add back: Non-recurring inventory
charge(1) ........................... -- 0.7
Add back: Amortization of acquisitions
intangibles and organization costs(2) 0.9 0.8
Add back: Step-up depreciation(3) ........ 0.1 0.0
Add back: Non-cash compensation
expense(4) .......................... -- 0.1
----- -----
Operating income before acquisitions related
and non-recurring adjustments ........... 7.8% 8.8%
===== =====
Notes on page 15
</TABLE>
Page 13
<PAGE>
The following table sets forth certain operating data of Brylane Inc. on an
unaudited proforma basis for the thirteen weeks ended May 4, 1996 to include net
sales, cost of sales and operating expenses for Chadwick's as if the Chadwick's
Acquisition had occurred on February 4, 1996 (the first day of fiscal 1996). The
proforma unaudited information is included for comparative purposes only and is
not meant to be indicative of what the consolidated statements of operations
data would have been had the transaction occurred at February 4, 1996.
<TABLE>
<CAPTION>
Thirteen Weeks Ended
--------------------
Proforma
May 4, 1996 May 3, 1997
----------- -----------
(in thousands)
(unaudited)
<S> <C> <C>
Net sales.......................................... $282,676 $328,801
Gross profit....................................... 139,085 159,754
Operating expenses:
Catalog and advertising....................... 75,133 83,339
Fulfillment................................... 20,378 28,070
Support services.............................. 18,792 22,010
Amortization of acquisitions
intangibles and organization costs....... 2,732 2,732
-------- --------
Operating income................................... 22,050 23,603
Add back: Non-recurring inventory
charge(1)................................ -- 2,486
Add back: Amortization of acquisitions
intangibles and organization costs(2).... 2,732 2,732
Add back: Step-up depreciation(3)............. 92 92
Add back: Non-cash compensation
expense(4)............................... -- 175
-------- --------
Operating income before acquisitions related
and non-recurring adjustments............. $ 24,874 $ 29,088
======== ========
</TABLE>
The following table expresses the above operating data as a percentage of
net sales for the periods indicated.
<TABLE>
<CAPTION>
Thirteen Weeks Ended
--------------------
Proforma
May 4,1996 May 3, 1997
---------- -----------
<S> <C> <C>
Net sales........................................ 100.0% 100.0%
Gross profit..................................... 49.2 48.6
Operating expenses:
Catalog and advertising..................... 26.6 25.3
Fulfillment................................. 7.2 8.6
Support services............................ 6.6 6.7
Amortization of acquisitions
intangibles and organization costs..... 1.0 0.8
--- ---
Operating income................................. 7.8 7.2
Add back: Non-recurring inventory
charge(1).............................. -- 0.7
Add back: Amortization of acquisitions
intangibles and organization costs(2).. 1.0 0.8
Add back: Step-up depreciation(3)........... 0.0 0.0
Add back: Non-cash compensation
expense(4)............................. -- 0.1
--- ---
Operating income before acquisitions related
and non-recurring adjustments........... 8.8% 8.8%
==== ====
Notes on page 15
</TABLE>
Page 14
<PAGE>
(1) The non-recurring inventory charge resulted from increasing inventory by
$4,972,000 for the Chadwick's Acquisition to reflect the fair market value of
the inventory at December 9, 1996, the closing date of the Chadwick's
Acquisition. The non-recurring inventory charge is being amortized into cost of
goods sold over six-months beginning in December 1996.
(2) Represents amortization of goodwill and other intangible assets related to
the Brylane Acquisition of $125,450,000 over a 30-year composite life and of
organizational costs of $300,000 over five years. Subsequent to October 1, 1995,
includes amortization related to the KingSize Acquisition of goodwill of
$50,762,000 over a 40-year life, of customer file of $520,000 over an eight-year
life, and of a noncompetition agreement of $300,000 over a five-year life.
Subsequent to December 9, 1996, includes amortization related to the Chadwick's
Acquisition of goodwill of $179,485,000 over a 40-year life, and of customer
file of $4,020,000 over a five-year life.
(3) Property and equipment were written up by $2,943,000 at the time of the
Brylane Acquisition. This step-up is being depreciated over eight years using
the straight-line method.
(4) Represents non-cash compensation expense related to amendments to the
Brylane, L.P. 1993 Partnership Unit Option Plan.
THIRTEEN WEEKS ENDED MAY 3, 1997 COMPARED TO THIRTEEN WEEKS ENDED MAY 4, 1996
NET SALES:
Net sales as reported for the thirteen weeks ended May 3, 1997 increased to
$328.8 million from $150.7 million in the comparable period of fiscal 1996. The
increase in net sales came principally from the inclusion of the net sales of
the recently acquired Chadwick's of Boston catalog and also from the Company's
other catalog titles.
Net sales on a proforma basis including Chadwick's for the thirteen weeks
ended May 4, 1996, increased 16.3% to $328.8 million from $282.7 million. Such
sales gain was due, primarily, to an increase in circulation and an increase in
the average order size across all catalogs as compared to the comparable period
in fiscal 1996.
GROSS PROFIT:
Gross profit for the thirteen weeks ended May 3, 1997 increased to $159.8
million (48.6% of net sales) from $78.0 million (51.8% of net sales) for the
same period of fiscal 1996. The lower gross profit as a percent of net sales is
due to the inclusion of the Chadwick's catalogs with lower mark-ups on
merchandise sold as compared to the Company's other catalog titles and to a
non-recurring inventory charge of $2.5 million (0.7% of net sales) relating to
the step-up of the value of inventory in connection with the Chadwick's
Acquisition.
Gross profit on a proforma basis including Chadwick's for the thirteen
weeks ended May 4, 1996 and eliminating the effects of the non-recurring
inventory charge in the thirteen weeks ended May 3, 1997, increased to $162.2
million (49.3% of net sales) from $139.1 million (49.2% of net sales), primarily
due to strong merchandise sourcing strategies.
CATALOG AND ADVERTISING EXPENSE:
Catalog and advertising expense is comprised of the costs to produce and
distribute catalogs, primarily paper, printing and catalog mailing costs, and
the cost of acquiring names of prospective customers. For the thirteen weeks
ended May 3, 1997, catalog and advertising expense increased to $83.3 million
(25.3% of net sales) from $47.5 million (31.6% of net sales) for the same period
of fiscal 1996. The decrease on a percent of net sales basis was primarily due
to the inclusion of the Chadwick's catalog and its associated catalog and
advertising expense and net sales.
Catalog and advertising expense on a proforma basis including Chadwick's
for the thirteen weeks ended May 4, 1996, decreased on a percent of net sales
basis to 25.3% ($83.3 million) in 1997 from 26.6% ($75.1 million) in 1996. This
decrease on a percent of net sales basis is primarily due to the
Page 15
<PAGE>
renegotiation of certain printing contracts, reduced paper costs and an increase
in the sales productivity per catalog.
Paper prices, which peaked in the Fall of 1995, declined throughout 1996.
Assuming that paper prices remain at their current levels, the Company believes
that it will experience a decrease in year-over-year paper costs in the second
quarter of 1997.
FULFILLMENT EXPENSE:
Fulfillment expense includes distribution center, telemarketing, credit
services and customer service expenses, partially offset by net merchandise
postage revenue. Fulfillment expense as reported in the thirteen weeks ended May
3, 1997 increased to $28.1 million (8.6% of net sales) from $8.3 million (5.5%
of net sales) for the same period in fiscal 1996. The increase on a percent of
net sales basis was primarily due to increased fulfillment costs associated with
the acquisition of Chadwick's.
Fulfillment expense on a proforma basis including Chadwick's for the
thirteen weeks ended May 4, 1996, increased on a percent of net sales basis to
8.6% ($28.1 million) in 1997 from 7.2% ($20.4 million) in 1996. This increase on
a percent of net sales basis was primarily due to increased payroll in the
distribution center, telemarketing and other areas to ensure a high level of
customer service in order to meet increased demand.
SUPPORT SERVICES EXPENSE:
Support services expense includes staffing and other administrative
overhead costs associated with the operation of the business and the license
fees associated with the Company's agreements with Sears Shop At Home. Support
services expense as reported for the thirteen weeks ended May 3, 1997 increased
to $22.0 million (6.7% of net sales) from $10.5 million (7.0% of net sales) for
the same period in fiscal 1996. The decrease on a percent of net sales basis was
primarily due to the inclusion of Chadwick's and its associated overhead costs
and net sales.
Support services expense on a proforma basis including Chadwick's for the
thirteen weeks ended May 4, 1996, increased as a percent of net sales to 6.7%
($22.0 million) in 1997 from 6.6% ($18.8 million) in 1996. This slight increase
in support services expense as a percent of net sales is primarily due to an
increase in staffing to support the growth of the business.
AMORTIZATION EXPENSE:
Acquisition related intangibles and organization cost amortization expense
in the thirteen weeks ended May 3, 1997 included $1.1 million related to the
Brylane Acquisition, $0.3 million related to the KingSize Acquisition and $1.3
million related to the Chadwick's Acquisition. Acquisition related intangibles
and organization cost amortization expense in the thirteen weeks ended May 4,
1996 included $1.1 million related to the Brylane Acquisition and $0.3 million
related to the KingSize Acquisition.
OPERATING INCOME:
Operating income before acquisitions-related and non-recurring adjustments
in the thirteen weeks ended May 3, 1997 increased $29.1 million (8.8% of net
sales) from $11.8 million (7.8% of net sales) for the same period of fiscal
1996. As a percent of net sales, operating income increased primarily as a
result of the decrease in catalog and advertising expense as described above,
partially offset by the increase in fulfillment expense.
Operating income on a proforma basis including Chadwick's for the thirteen
weeks ended May 4, 1996, increased to $29.1 million (8.8% of net sales) in 1997
from $24.9 million (8.8% of net sales) in 1996.
Page 16
<PAGE>
INTEREST EXPENSE:
Interest expense, net, in the thirteen weeks ended May 3, 1997 increased to
$7.5 million (2.3% of net sales) from $5.6 million (3.7% of net sales) for the
same period of fiscal 1996 due to the increased borrowings of $210 million
incurred in connection with the Chadwick's Acquisition, partially offset by
slightly lower interest rates on the term loans of the 1996 Bank Credit Facility
(as defined below).
NET INCOME:
Net income as reported before income taxes and extraordinary charge
increased to $16.1 million ($0.51 per share) in the first quarter of 1997 from
$4.7 million ($0.35 per share) for the same period of fiscal 1996. The increase
in net income is due to the inclusion of the recently acquired Chadwick's
catalog.
Income taxes for the period ended May 3, 1997 were $6.5 million or 40.4% of
income before extraordinary charge. Income taxes on supplemental income before
extraordinary charge were $5.9 million or 37.0%. The difference between the
effective income tax rate as reported and the effective tax rate on supplemental
net income relates primarily to the allocation of loss to the Partnership for
the periods prior to the Initial Public Offering of Brylane Inc. Common Stock.
The difference between the effective tax rate on supplemental net income of 37%
and the federal statutory rate of 35% relates primarily to state income taxes,
net of federal tax benefit.
An extraordinary charge of $4.1 million ($0.22 per share), net of tax, was
recorded in the thirteen weeks ended May 3, 1997 as a result of the early
retirement of the debt under the 1996 Bank Credit Facility. After giving effect
to this extraordinary charge, net income increased to $5.5 million ($0.29 per
share) in the first quarter of 1997 from $4.7 million ($0.35 per share) for the
same period in 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Company has historically met its working capital needs, principally
building inventory to meet increased sales, and its capital expenditure
requirements primarily through funds generated from operations. After the
Brylane Acquisition, the KingSize Acquisition and the Chadwick's Acquisition,
the Company's liquidity requirements have also included servicing the debt
incurred to finance these acquisitions.
Cash flow provided by operating activities increased to $59.3 million for
the thirteen weeks ended May 3, 1997, from $15.4 million for the thirteen weeks
ended May 4, 1996. This increase was primarily due to an increase in net income,
a decrease in merchandise inventory levels and higher merchandise payables on
inventory owned by the Company at May 3, 1997, and a decrease in accounts
receivable related to the deferred receivables program. The Company's cash
balance was $35.0 million at May 3, 1997 compared to $3.3 million at February 1,
1997. The increase in the cash balance from February 1, 1997 to May 3, 1997 was
achieved while using $23.6 million for financing activities, which included
$22.0 million in debt payments as well as $4.0 million in capital expenditures,
as discussed below.
Capital expenditures were $4.0 million in the thirteen weeks ended May 3,
1997 compared to $0.5 million in the same period in fiscal 1996. The Company's
capital expenditures for the remainder of fiscal 1997 are estimated to be $8.5
million, including $1.4 million for a new telemarketing order entry system for
Chadwick's, $1.4 million for management information systems, $1.3 million for
the Chadwick's fulfillment and return processing centers, and $0.9 million for
remodeling the stacker cranes at the Indianapolis fulfillment center. The
remaining $3.5 million of capital expenditures in fiscal 1997 will be spent on
routine maintenance and upgrades for both of Brylane's catalog fulfillment
centers. Brylane plans to fund its capital expenditures for fiscal 1997 using
cash generated from operations.
In connection with the Chadwick's Acquisition, the Partnership entered into
a Credit Agreement dated December 9, 1996 among Brylane, Morgan Guaranty Trust
Company of New York ("Morgan Guaranty"), as administrative agent, Merrill Lynch
Capital Corporation ("Merrill Lynch"), as documentation agent, and
Page 17
<PAGE>
the other lenders party thereto, and guaranteed by each of the Company's
subsidiaries (the "1996 Bank Credit Facility"), which consisted of (i) a $213.0
million five-year term loan, (ii) a $70.0 million six-year and three-month term
loan, and (iii) a $125.0 million five-year revolving credit facility with a
$75.0 million sublimit for letters of credit. The proceeds of the term loans of
the 1996 Bank Credit Facility were used to fund a portion of the cash paid upon
the closing of the Chadwick's Acquisition (including related fees and expenses)
as well as to repay Brylane's then existing indebtedness under its 1993 bank
credit facility. In connection with Brylane Inc.'s Initial Public Offering on
February 26, 1997, and the use of the net proceeds received therefrom and
contributed by Brylane Inc. to the Partnership, the Company repaid $89.3 million
in indebtedness under its 1996 Bank Credit Facility. In addition, the Company
made $12.0 million of prepayments on the 1996 Bank Credit Facility during the
thirteen weeks ended May 3, 1997.
On April 30, 1997, the Partnership entered into a credit agreement among
Brylane, Morgan Guaranty, as administrative agent, Merrill Lynch, as
documentation agent, and the lenders party thereto, and guaranteed by each of
the Company's subsidiaries (the "1997 Bank Credit Facility") which consists of
(i) a $111.7 million four-year nine-month term loan (the "Tranche A Term Loan"),
(ii) a $70.0 million five-year and ten-month term loan (the "Tranche B Term
Loan", and collectively with the Tranche A Term Loan, the "Term Loans"), and
(iii) a $125.0 million four-year nine-month revolving credit facility (the
"Revolving Credit Facility") with a $75.0 million sublimit for letters of
credit. The proceeds of the Term Loans of the 1997 Bank Credit Facility were
used to repay Brylane's existing indebtedness under the 1996 Bank Credit
Facility. The Revolving Credit Facility can be used for letters of credit and
general corporate purposes, including working capital needs. The Term Loans
require scheduled quarterly principal payments over their terms. In addition,
Brylane is obligated to make certain mandatory prepayments of the Term Loans and
the Revolving Credit Facility under certain circumstances. Borrowings under the
Term Loans and the Revolving Credit Facility bear interest at one of two rates
selected by the Partnership (i) a margin over the higher of (A) Morgan
Guaranty's prime rate or (B) the federal funds rate plus 0.5% or (ii) a margin
over LIBOR (as defined) for specified interest periods. The margin for each rate
may vary based on the ratio of the Partnership's net debt to operating cash flow
ratio. The Tranche A Term Loan currently bears interest at LIBOR plus 1.125% and
the Tranche B Term Loan initially bears interest at LIBOR plus 1.625%. (Prior to
the refinancing, the term loans under the 1996 Bank Credit Facility bore
interest at LIBOR plus 2.0% and LIBOR plus 2.5%, respectively). The Term Loans
begin amortizing on August 2, 1997, with aggregate scheduled principal payments
of $9.9 million during the remainder of fiscal 1997.
The Company made $10.0 million of prepayments on the Tranche A Term Loan of
the 1997 Bank Credit Facility during the thirteen weeks ended May 3, 1997. As of
May 3, 1997, Brylane had no borrowings under the Revolving Credit Facility and,
after giving effect to the issuance of letters of credit for $39.5 million which
the Company intends to pay through funds generated from operations, had
additional capacity under the Revolving Credit Facility of approximately $85.5
million.
Subsequent to May 3, 1997, the Company prepaid an additional $50.0 million
on the Tranche A Term Loan of the 1997 Bank Credit Facility. Amounts used by the
Company to make such prepayments included the $28.8 million preliminary cash
purchase price adjustment received by the Company from TJX on May 16, 1997 (See
Note (3) of the Notes to the Unaudited Consolidated Financial Statements) and
the remainder came from available funds. As a result of these prepayments, the
remaining balance of the Tranche A Term Loan was reduced to $51.7 million and
the scheduled principal payments for the remainder of fiscal 1997 have been
reduced to approximately $5.4 million.
In connection with the Brylane Acquisition, the Partnership issued $125.0
million aggregate principal amount of its senior subordinated notes (the "Senior
Subordinated Notes"). The Senior Subordinated Notes bear interest at 10% per
annum, payable semi-annually, and mature in 2003. The 1997 Bank Credit Facility,
and the Indenture dated as of August 30, 1993 among Brylane and Brylane Capital
Corp., as Issuers, the subsidiaries of Brylane, as Guarantors, and United States
Trust Company of New York, as Trustee (as supplemented, the "Indenture")
pursuant to which the Senior Subordinated Notes were issued contain covenants
(the "Covenants") that, among other things, restrict the Partnership's ability
to incur debt, make distributions, incur liens, make capital expenditures and
make investments or acquisitions. Brylane's estimated capital expenditures were
in compliance with the Covenants.
Page 18
<PAGE>
In connection with the Chadwick's Acquisition, Brylane, L.P. entered into
an Accounts Receivable Purchase Agreement dated as of December 9, 1996 with
Alliance Data Systems Corporation ("ADS") (as amended on January 27, 1997, the
"Receivables Purchase Agreement") pursuant to which ADS has agreed to purchase
from the Company eligible customer accounts receivable generated through
Chadwick's deferred billing programs. ADS' commitment to purchase receivables is
limited to $100.0 million outstanding at any time. ADS will purchase the
receivables on a limited recourse basis at a discount from face value. The
Company pays transaction costs including a fee of $.03 per purchased account,
and carrying costs equal to, at the Company's election, LIBOR plus 95 basis
points or the lesser of (a) a defined prime rate plus 15 basis points and (b)
the federal funds rate plus 110 basis points. The receivables purchase facility
has a three-year term and is subject to early termination upon occurrence of
certain events, including chargebacks and customer default ratios above
specified levels or an uncured default by the Partnership under its 1997 Bank
Credit Facility.
While no assurances can be given in this regard, based on current and
projected operating results, Brylane believes that cash flow from operations
will provide adequate funds for ongoing operations, debt service on its
indebtedness (including scheduled prepayments under the 1997 Bank Credit
Facility), and planned capital expenditures for the foreseeable future. In
addition, the Company will have availability under the Revolving Credit Facility
to finance seasonal capital needs.
Page 19
<PAGE>
Part II - OTHER INFORMATION
---------------------------
ITEM 6. - EXHIBITS AND REPORTS ON FORM 8-K
- ------------------------------------------
<TABLE>
(a) Exhibits.
<S> <C>
10.1 Credit Agreement dated as of April 30, 1997 (the "Credit Agreement") among
Brylane, L.P. (the "Partnership"), the Lenders listed on the signature
pages thereof, Morgan Guaranty Trust Company of New York ("Morgan
Guaranty"), as Administrative Agent, and Merrill Lynch Capital Corporation
("Merrill Lynch"), as Documentation Agent.
10.2 Form of Tranche A Term Notes dated April 30, 1997 executed by the
Partnership in favor of each of the various Lenders which are signatories
to the Credit Agreement.
10.3 Form of Tranche B Notes dated April 30, 1997 executed by the Partnership in
favor of each of the various Lenders which are signatories to the Credit
Agreement.
10.4 Guarantee Agreement dated as of April 30, 1997 among the Guarantors (as
defined therein), and Morgan Guaranty, as Administrative Agent for the
Lenders and for the Issuing Banks (as defined in the Credit Agreement).
10.5 Pledge Agreement dated as of April 30, 1997 among the Partnership, the
Subsidiary Pledgors (as defined therein), and Morgan Guaranty, as Security
Agent.
10.6 Security Agreement dated as of April 30, 1997 among the Partnership, the
Subsidiary Grantors (as defined therein), and Morgan Guaranty, as Security
Agent.
10.7 Trademark Collateral Agreement dated as of April 30, 1997 among Lanco,
Inc., Lernco, Inc., Limited Stores, Inc., Lerner Stores, Inc., Lane Bryant,
Inc., M&P Distributing Co. and Morgan Guaranty, as Security Agent.
27.1 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K.
There were no reports on Form 8-K filed by Brylane Inc. during the
quarter ended May 3, 1997. On February 21, 1997, Brylane, L.P. filed an
Amended Current Report on Form 8-K/A (File No. 33-69532) to include the
required audited financial statements and unaudited proforma financial
statements relating to the Chadwick's Acquisition.
Page 20
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated : June 17, 1997 BRYLANE INC.
By: /s/ Robert A. Pulciani
----------------------
Robert A. Pulciani
Executive Vice President, Chief Financial
Officer and Secretary and Treasurer of
Brylane Inc.
(On behalf of the Registrant and as the
principal financial and accounting officer
of the Registrant)
Page 21
<PAGE>
EXHIBIT 10.1
================================================================================
$306,663,145.58
CREDIT AGREEMENT
dated as of
April 30, 1997
among
Brylane, L.P.,
The Lenders Listed Herein,
Morgan Guaranty Trust Company of New York,
as Administrative Agent
and
Merrill Lynch Capital Corporation,
as Documentation Agent
================================================================================
[CS&M Ref No. 1385-309]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
DEFINITIONS Page
----
<S> <C>
SECTION 1.01. Definitions................................................ 2
SECTION 1.02. Accounting Terms and Determinations........................ 30
SECTION 1.03. Types of Borrowings........................................ 30
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend........................................ 31
SECTION 2.02. Method of Borrowing........................................ 31
SECTION 2.03. Notes...................................................... 34
SECTION 2.04. Interest Rate Elections.................................... 34
SECTION 2.05. Interest Rates............................................. 36
SECTION 2.06. Commitment Fees............................................ 38
SECTION 2.07. Termination or Reduction of Commitments.................... 39
SECTION 2.08. Mandatory Repayments and Prepayments....................... 40
SECTION 2.09. Optional Prepayments....................................... 43
SECTION 2.10. General Provisions as to Payments.......................... 44
SECTION 2.11. Funding Losses............................................. 45
SECTION 2.12. Computation of Interest and Fees........................... 45
SECTION 2.13. Letters of Credit.......................................... 45
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness.............................................. 51
SECTION 3.02. Each Credit Event.......................................... 54
</TABLE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 4.01. Existence and Power........................................ 55
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention.......................................... 55
SECTION 4.03. Binding Effect............................................. 56
SECTION 4.04. Financial Information; Title to Properties................. 56
SECTION 4.05. Litigation................................................. 57
SECTION 4.06. Compliance with ERISA...................................... 57
SECTION 4.07. Taxes...................................................... 58
SECTION 4.08 Parent Corporation......................................... 58
SECTION 4.09. Subsidiaries............................................... 58
SECTION 4.10. Not an Investment Company.................................. 58
SECTION 4.11. Compliance with Laws....................................... 59
SECTION 4.12. Agreements................................................. 59
SECTION 4.13. Federal Reserve Regulations................................ 59
SECTION 4.14. Disclosure................................................. 59
SECTION 4.15. Governmental Approvals..................................... 60
SECTION 4.16. Security Interests......................................... 60
SECTION 4.17. Employment and Management Agreements....................... 60
SECTION 4.18. Capitalization............................................. 61
SECTION 4.19. Environmental Matters...................................... 61
ARTICLE V
COVENANTS
SECTION 5.01. Information................................................ 62
SECTION 5.02. Payment of Obligations..................................... 65
SECTION 5.03. Maintenance of Property; Insurance;
Casualty and Condemnation................................. 65
SECTION 5.04. Conduct of Business and Maintenance of Existence........... 67
SECTION 5.05. Compliance with Laws....................................... 68
SECTION 5.06. Inspection of Property, Books and Records.................. 68
SECTION 5.07. Fiscal Year................................................ 68
SECTION 5.08. Further Assurances......................................... 68
SECTION 5.09. Subsidiaries; Partnerships................................. 69
SECTION 5.10. Amendment of Certain Documents............................. 69
SECTION 5.11. Debt; Preferred Stock; Rate Protection Agreements.......... 70
SECTION 5.12. Restricted Payments........................................ 73
SECTION 5.13. Mergers, Consolidations, Acquisitions and Sales of Assets.. 75
SECTION 5.14. Transactions with Affiliates............................... 76
SECTION 5.15. Sale and Lease-Back Transactions........................... 76
SECTION 5.16. Investments................................................ 77
SECTION 5.17. Negative Pledge............................................ 77
SECTION 5.18. Use of Proceeds and Letters of Credit...................... 79
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 5.19. Grants of Negative Pledges or Dividend Restrictions........ 79
SECTION 5.20. Changes in Accounting...................................... 79
SECTION 5.21. Fixed Charge Coverage Ratio................................ 80
SECTION 5.22. Minimum Adjusted Net Worth................................. 80
SECTION 5.23. Debt Coverage Ratio........................................ 80
SECTION 5.24. Capital Expenditures....................................... 81
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default.......................................... 81
SECTION 6.02. Notice of Default.......................................... 85
ARTICLE VII
THE AGENT, SECURITY AGENT AND ISSUING BANKS
SECTION 7.01. Appointment and Authorization.............................. 85
SECTION 7.02. Agent and Affiliates....................................... 85
SECTION 7.03. Action by Agent............................................ 85
SECTION 7.04. Consultation with Experts.................................. 85
SECTION 7.05. Liability of Agent......................................... 86
SECTION 7.06. Indemnification............................................ 86
SECTION 7.07. Credit Decision............................................ 86
SECTION 7.08. Successor Agent............................................ 87
SECTION 7.09. Agents Fees................................................ 87
SECTION 7.10. Sub-Agents................................................. 87
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair... 88
SECTION 8.02. Illegality................................................. 88
SECTION 8.03. Increased Cost and Reduced Return.......................... 89
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate Loans.. 91
SECTION 8.05. Replacement of Lenders..................................... 91
SECTION 8.06. Taxes...................................................... 92
</TABLE>
ARTICLE IX
MISCELLANEOUS
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 9.01. Notices.................................................... 94
SECTION 9.02. No Waivers................................................. 95
SECTION 9.03. Expenses; Documentary Taxes; Indemnification............... 95
SECTION 9.04. Sharing of Set-Offs........................................ 96
SECTION 9.05. Amendments and Waivers..................................... 97
SECTION 9.06. Successors and Assigns..................................... 97
SECTION 9.07. Collateral................................................. 99
SECTION 9.08. Waiver of Trial by Jury.................................... 100
SECTION 9.09. New York Law............................................... 100
SECTION 9.10. Counterparts; Integration.................................. 100
SECTION 9.11. Limitation on Recourse..................................... 100
SECTION 9.12. Interest Rate Limitation................................... 100
</TABLE>
-iv-
<PAGE>
Exhibit A - Note
Exhibit B - Form of Borrowing Base Certificate
Exhibit C - Guarantee Agreement
Exhibit D - Pledge Agreement
Exhibit E - Security Agreement
Exhibit F - Trademark Collateral Agreement
Exhibit G - Forms of Opinions of Borrower's Counsel
Exhibit H - Form of Perfection Certificate
Exhibit I - Form of Issuing Bank Agreement
Exhibit J - Form of Assignment and Acceptance
Schedule 1 - Commitments
Schedule 2 - Mortgaged Properties
Schedule 4.08 - Subsidiaries
Schedule 4.16 - Employment and Management Agreements
Schedule 5.14 - Certain Fees
Schedule 5.17 - Certain Liens
-v-
<PAGE>
-1-
CREDIT AGREEMENT
AGREEMENT dated as of April 30, 1997, among BRYLANE, L.P.,
the LENDERS listed on the signature pages hereof, MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Administrative Agent, and MERRILL
LYNCH CAPITAL CORPORATION, as Documentation Agent.
Preliminary Statement
---------------------
The Borrower (such term, and all other capitalized terms in this
preliminary statement, being used as hereinafter defined) has requested the
Lenders, subject to the terms and conditions of this Agreement, to extend credit
to the Borrower, in the aggregate principal amount of up to $306,663,145.58, in
the form of (i) Term Loans to be made by the Lenders on the Effective Date in an
aggregate principal amount not in excess of $181,663,145.58, (ii) Revolving
Loans to be made by the Lenders from time to time during the Revolving Loan
Availability Period in an aggregate principal amount at any time outstanding not
in excess of $125,000,000 (subject to certain limitations specified herein) and
(iii) Letters of Credit to be issued by the Issuing Banks from time to time
during the Revolving Loan Availability Period in an aggregate amount at any time
outstanding not in excess of $75,000,000 (subject to certain limitations
specified herein); provided that the sum of Revolving Loans and Letters of
--------
Credit shall not exceed $125,000,000. The proceeds of the Term Loans shall be
used by the Borrower to refinance Debt outstanding under the Existing Credit
Agreement. The proceeds of the Revolving Loans shall be used by the Borrower
for general corporate
<PAGE>
-2-
purposes, including to finance the working capital requirements of the Borrower.
Letters of Credit shall be issued only for general corporate purposes in the
ordinary course of business of the Borrower.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
------------
the following meanings:
"Acquisition" means the purchase by the Borrower of substantially all
the assets (excluding cash and certain accounts receivable) of Chadwick's, Inc.
and its subsidiary, CDM Corp., pursuant to the Asset Purchase Agreements.
"Adjusted EBITDA" means, for any period, the sum of (a) Consolidated
Net Income for such period, excluding extraordinary or nonrecurring gains or
losses, plus (b) depreciation, amortization (including amortization of deferred
financing costs and of the initial write-up of inventories resulting from the
acquisition of a business, including the Acquisition) and interest expense
deducted in determining such Consolidated Net Income, plus (c) income taxes
deducted in determining such Consolidated Net Income.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.05(b).
"Administrative Questionnaire" means, with respect to each Lender, the
administrative questionnaire in the form submitted to such Lender by the Agent
and submitted to the Agent (with a copy to the Borrower) duly completed by such
Lender.
"Affiliate" means any Person (other than a Subsidiary) directly or
indirectly controlling, controlled by or under common control with the Borrower.
As used in this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
<PAGE>
-3-
contract or otherwise. For purposes of this Agreement and the other Loan
Documents, any Person that directly or indirectly owns 10% or more of the
regularly voting common equity securities of the Parent Corporation, together
with its affiliates, shall be deemed to be an Affiliate of the Borrower.
"Agent" means Morgan Guaranty Trust Company of New York in its
capacity as administrative agent for the Lenders hereunder, and its successors
in such capacity.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of its Domestic Loans, its Domestic Lending Office and (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Percentage" of any Lender means the percentage of the
aggregate Revolving Commitments represented by such Lender's Revolving
Commitment.
"Asset Purchase Agreements" means, collectively, (i) the Asset
Purchase Agreement, dated as of October 18, 1996, among The TJX Companies, Inc.,
Chadwick's, Inc. and the Borrower, and (ii) the Asset Purchase Agreement, dated
as of October 18, 1996, between CDM Corp. and the Borrower.
"Asset Sale Prepayment Event" means any sale, assignment, transfer or
other disposition of, or casualty to or condemnation of, any assets or
properties of the Borrower or any Subsidiary, other than (a) sales of inventory
and used or surplus equipment in the ordinary course of business, (b) sales of
credit card receivables pursuant to the Credit Card Agreement and (c) any other
event that would constitute an "Asset Sale Prepayment Event" if the Borrower
intends to reinvest the Net Cash Proceeds therefrom in capital assets within six
months after receipt of such Net Cash Proceeds (any such event described in this
clause (c) being referred to as a "Reinvestment Event"); provided that (i) if
--------
the Net Cash Proceeds from any Reinvestment Event, plus the Net Cash Proceeds
from any previous Reinvestment Event that have not yet been reinvested in
capital assets, exceed $15,000,000, then an "Asset Sale Prepayment Event" shall
be deemed to have occurred with Net Cash Proceeds equal to such excess, and (ii)
if the Net Cash Proceeds from any Reinvestment Event have not been fully
reinvested in capital assets by the date that is six months after the receipt of
such Net Cash Proceeds, an "Asset Sale Prepayment
<PAGE>
-4-
Event" shall be deemed to have occurred on such date with Net Cash Proceeds
equal to the Net Cash Proceeds from such Reinvestment Event (excluding any
excess portion thereof referred to in clause (i) above) minus the reinvested
portion; provided further that, if a Reinvestment Event constitutes a casualty
-------- -------
or condemnation, then (A) clause (i) above shall not apply to Net Cash Proceeds
therefrom consisting of insurance proceeds or condemnation awards and (B) the
six-month period referred to in clause (ii) above shall be extended for such
period of time as the Borrower is actively and diligently engaged in the repair
or replacement of the affected asset or property.
"Assignee" has the meaning set forth in Section 10.06(c).
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means at any time a loan outstanding hereunder
which bears interest at such time at a rate based on the Base Rate pursuant to a
Notice of Borrowing or Notice of Interest Rate Election (or in the case of the
Borrower's failure to timely provide such a notice) or pursuant to Article VIII.
"Base Rate Margin" means (a) with respect to any Tranche B Term Loan
that is a Base Rate Loan, the applicable Tranche B Margin, and (b) with respect
to any other Base Rate Loan outstanding on any day:
(A) 0.00%, if such day falls within a Level I Pricing Period or a
Level II Pricing Period;
(B) 0.125%, if such day falls within a Level III Pricing Period;
(C) 0.25%, if such day falls within a Level IV Pricing Period; or
(D) 0.50%, if such day falls within a Level V Pricing Period.
"Borrower" means Brylane, L.P., a Delaware limited partnership, and
its successors.
<PAGE>
-5-
"Borrowing" has the meaning set forth in Section 1.03.
"Borrowing Base" means, at any time, an amount equal to the sum of (a)
70% of the excess of (i) the book value of the Borrower's inventory as of such
date, minus (ii) the book value of any such inventory that is classified for
purposes of the Borrower's financial statements as slow-moving or obsolete
inventory, plus (b) 50% of the excess of (i) the book value (net of accumulated
depreciation) of the Borrower's property, plant and equipment as of such date
minus (ii) the aggregate outstanding principal amount of Capital Financing Debt
as of such date. The Borrowing Base at any time shall be determined by
reference to the most recent Borrowing Base Certificate delivered to the Agent,
absent any error in such Borrowing Base Certificate.
"Borrowing Base Certificate" means a certificate in the form of
Exhibit B hereto, duly completed and executed by the chief financial officer,
chief accounting officer or treasurer of the Borrower.
"Capital Expenditures" means, with respect to any period, (a) the
additions to property, plant and equipment and other capital expenditures of the
Borrower and its Consolidated Subsidiaries for such period, as the same are (or
would be) set forth, in accordance with generally accepted accounting
principles, in a consolidated statement of cash flow of the Borrower for such
period, and (b) any other additions to assets or expenditures of the Borrower
and its Consolidated Subsidiaries during such period financed with Capital
Financing Debt, whether or not such other additions to assets or expenditures
are (or would be) set forth in such statement of cash flow (but without
duplication of amounts described in clause (a) above); provided that Permitted
--------
Acquisitions shall not constitute "Capital Expenditures" for purposes of this
Agreement.
"Capital Financing Debt" means (a) Debt (including obligations under
capital leases) incurred to finance the acquisition, construction, improvement
or lease of property, plant or equipment or other capital assets; provided that
--------
such Debt is incurred at the time of or within 90 days after such acquisition or
lease, or during or within 90 days after the substantial completion of such
construction or improvement; and (b) any Debt incurred to refinance Debt
<PAGE>
-6-
described in clause (a) above, provided that the principal amount of such
refinancing Debt does not exceed the principal amount of Debt being refinanced.
"Cash Available for Principal Payments" means, for any period,
Consolidated Net Income for such period, plus, without duplication, (a)
----
depreciation, amortization (including amortization of the initial write-up of
inventories resulting from the acquisition of a business, including pursuant to
the Acquisition) and other noncash items deducted in determining such
Consolidated Net Income, (b) the amount, if any, by which Net Working Investment
decreased during such period and (c) the amount, if any, of cash received by the
Borrower and its Subsidiaries during such period (net of any expenses
attributable thereto not deducted in determining such Consolidated Net Income)
pursuant to transactions not in the ordinary course of business, to the extent
receipt of such cash is (x) not included in income in determining such
Consolidated Net Income but to be included in income in a later period or
periods and (y) not attributable to a Prepayment Event or Reinvestment Event,
minus, without duplication, (i) the amount of any noncash items included in
- -----
income in determining such Consolidated Net Income, (ii) the amount, if any, by
which Net Working Investment increased during such period, (iii) the amount of
Capital Expenditures made during such period (but excluding Capital Expenditures
to the extent financed with Capital Financing Debt or financed with Net Cash
Proceeds from a Reinvestment Event), (iv) to the extent not deducted in
determining such Consolidated Net Income, the amount, if any, paid by the
Borrower during such period as cash consideration for Permitted Acquisitions
(provided that no deduction shall be permitted pursuant to this clause (iv)
after the aggregate cumulative amount of cash consideration for Permitted
Acquisitions equals $35,000,000), (v) the amount, if any, of items included in
income in determining such Consolidated Net Income representing cash received
and included in calculating "Cash Available for Principal Payments" in a
previous period pursuant to clause (c) above, (vi) the amount, if any, by which
deferred compensation decreased during such period, (vii) to the extent not
deducted in determining such Consolidated Net Income, the amount of Tax Advances
and Tax Distributions paid in cash during such period in compliance with Section
5.12, and (viii) in the case of the fiscal year ending on the Saturday closest
to and January 31, 1998, to the extent not deducted in determining such
Consolidated Net
<PAGE>
-7-
Income for such fiscal year, the aggregate amount, if any, paid by the Borrower
during such fiscal year in cash in respect of post-closing purchase price
adjustments and tax adjustments pursuant to the Asset Purchase Agreements;
provided that, for purposes of the foregoing, Consolidated Net Income shall be
- --------
determined without regard to any gains, losses, taxes or expenses resulting from
or incurred in connection with a Prepayment Event or Reinvestment Event.
A "Change of Control" shall be deemed to have occurred if any
partnership interest in the Borrower shall be owned by any Person other than the
Parent Corporation and the Parent Corporation's wholly owned subsidiaries, (ii)
FS&Co. and its affiliates, as a group, shall own (beneficially and of record)
and control voting securities of the Parent Corporation representing less than
20% of the voting power represented by all outstanding securities of the Parent
Corporation, (iii) the Initial Control Group, as a group, shall own
(beneficially and of record) and control voting securities of the Parent
Corporation representing less than 40% of the voting power represented by all
outstanding securities of the Parent Corporation, (iv) any person or group
(within the meaning of Rule 13d-5 of the Securities and Exchange Commission as
in effect on the date hereof) other than a Person or Persons in the Initial
Control Group shall become the beneficial owner (within the meaning of Rule
13d-3 of such Commission as in effect on the date hereof) of voting securities
(including any options, rights or warrants to purchase, and any securities
convertible into or exchangeable for, voting securities) of the Parent
Corporation representing 20% or more of the voting power represented by all
outstanding securities of the Parent Corporation, or (v) less than a majority of
the seats (other than vacant seats) on the board of directors of the Parent
Corporation shall at any time be occupied by persons who were (x) nominated by a
Person or Persons in the Initial Control Group, or (y) appointed by directors so
nominated, or (c) at any time a "Change of Control", as defined in the
Subordinated Debt Documents, shall occur; provided that an event described in
--------
clause (ii) or (iii) above shall not constitute a "Change of Control" if, after
giving effect to such event and to any repayment of Debt effected in connection
with such event, the Debt Coverage Ratio is equal to or less than 2.5:1.0.
"Class" has the meaning set forth in Section 1.03.
<PAGE>
-8-
"Commitment" means, with respect to each Lender, its Tranche A Term
Commitment, Tranche B Term Commitment or Revolving Loan Commitment or all such
Commitments, as the context may require.
"Consolidated Adjusted Net Worth" means at any date (a) the partners'
capital of the Borrower as of such date, adjusted to eliminate (i) the effects
on Consolidated Net Income of the amortization of the initial write-up of
inventories resulting from the Acquisition or any other acquisition of a
business on or after the Effective Date, and (ii) any accounting adjustments
resulting from the Conversion, minus (b) the amount, if any, of Tax Advances and
Management Notes outstanding on such date, to the extent such outstanding Tax
Advances and Management Notes are included in determining the amount referred to
in clause (a) above.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Borrower and its Consolidated Subsidiaries for such
period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"Conversion" means the reorganization of the ownership of the Borrower
pursuant to which the Borrower became a wholly owned subsidiary of the Parent
Corporation.
"Convertible Subordinated Debt" means Debt of the Borrower and the
Parent Corporation in the aggregate principal amount of $20,000,000 in respect
of convertible subordinated notes issued as part of the consideration for the
Acquisition, maturing approximately 9-1/2 years after the Effective Date and
convertible into shares of common stock of the Parent Corporation.
"Credit Card Agreements" means (a) the Credit Card Processing
Agreement in effect on the Effective Date between the Borrower and World
Financial Network National Bank, as amended and in effect from time to time, (b)
the Accounts Receivable Purchase Agreement in effect on the Effective Date
between the Borrower and Alliance Data Systems Corporation, as amended and in
effect from time to time, and
<PAGE>
-9-
(c) any successor, replacement or additional agreement providing for similar
services and transactions.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all obligations of
such Person as an account party in respect of letters of credit and bankers'
acceptances, (vi) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, and (vii) all Debt
of others Guaranteed by such Person. The amount of any Debt described in clause
(vi) above shall be deemed to be limited to the fair market value of the assets
on which a Lien has been granted to secure such Debt unless such Debt has been
assumed or Guaranteed by such Person. The amount of any Debt described in
clause (vii) above shall be limited to the maximum amount payable under the
applicable Guarantee of such Person if such Guarantee contains limitations on
the amount payable thereunder.
"Debt Coverage Ratio" means, at any date, the ratio of (i) the
consolidated Debt of the Borrower and its Consolidated Subsidiaries (excluding
(a) Letter of Credit Exposure and the amount of any other outstanding letters of
credit, except to the extent such Letter of Credit Exposure and other
outstanding letters of credit represent unreimbursed drawings thereunder;
provided that amounts excluded under this clause (a) shall not exceed
- --------
$75,000,000, and (b) contingent liabilities to repurchase accounts receivable
pursuant to the Credit Card Agreements, to the extent such contingent
liabilities constitute Debt), determined on a consolidated basis as of such
date, divided by (ii) Adjusted EBITDA for the most recent period of four
consecutive fiscal quarters of the Borrower ended on or prior to such date;
provided that if the Acquisition or a Permitted Acquisition has occurred during
- --------
the period since the commencement of the period of four consecutive fiscal
quarters for which such Adjusted EBITDA has been determined and on or prior to
such date of determination, then such Adjusted EBITDA shall be determined on a
pro forma basis
<PAGE>
-10-
(i.e., based on the assumption that the Acquisition or such Permitted
----
Acquisition, as the case may be, occurred on the first day of such period of
four consecutive fiscal quarters) in accordance with generally accepted
accounting principles.
"Debt Prepayment Event" means the incurrence by the Borrower or any
Subsidiary after the Effective Date of any Debt referred to in clause (iv) of
Section 5.11(a).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Descriptive Materials" means the Materials prepared by J.P. Morgan
Securities Inc., Merrill Lynch Capital Corporation and the Borrower in
connection with the Financing Transactions.
"Documentation Agent" means Merrill Lynch Capital Corporation in its
capacity as documentation agent for the Lenders hereunder.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Environmental and Safety Laws" means any and all applicable Federal,
state, local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, approvals, concessions, grants, franchises,
licenses, agreements with Governmental Authorities or other governmental
restrictions or requirements binding upon the Borrower or any of its
Subsidiaries, as applicable, relating to the environment, or to employee health
or safety as it
<PAGE>
-11-
pertains to the use or handling of or exposure to noxious odors or toxic,
caustic or radioactive substances, materials or wastes (including, without
limitation, petroleum or petroleum products, polychlorinated biphenyls (PCBs),
asbestos or asbestos containing materials) or to the preservation or reclamation
of natural resources as a result of the actual or threatened emission, discharge
or release of pollutants or contaminants into the environment including, without
limitation, ambient air, surface water, groundwater, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of any such pollutants, contaminants, toxic,
caustic or hazardous substances, materials or wastes or the clean-up or other
remediation thereof, including the Hazardous Materials Transportation Act, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and Hazardous and Solid Waste Amendments of 1984, the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, the Clean Air
Act of 1970, as amended, the Toxic Substances Control Act of 1976, the
Occupational Safety and Health Act of 1970, as amended, the Emergency Planning
and Community Right-to-Know Act of 1986, the Safe Drinking Water Act of 1974, as
amended, and any similar or implementing state law, and all amendments or
regulations promulgated hereunder.
"Equity Prepayment Event" means the issuance of additional partnership
interests or equity securities, or receipt of additional capital contributions,
by the Borrower or the Parent Corporation, or any other equity investment in the
Borrower or the Parent Corporation, in each case after the Effective Date;
provided that (a) the foregoing shall not constitute "Equity Prepayment Events"
- --------
to the extent attributable to equity investments by members of management of the
Borrower (either made directly in the Borrower or indirectly by any partner in
or stockholder of the Borrower from funds obtained, directly or indirectly, from
such members of management) unless either (i) the aggregate Net Cash Proceeds
therefrom exceed $2,500,000 during any fiscal year of the Borrower or (ii) after
giving effect thereto the aggregate cumulative amount of Net Cash Proceeds
therefrom since December 9, 1996, exceeds the sum of $1,000,000 plus the
aggregate cumulative amount of Restricted Payments made since December 9, 1996,
pursuant to clause (e) of
<PAGE>
-12-
Section 5.12, in which case the foregoing shall constitute "Equity Prepayment
Events" to the extent of any such excess referred to in clause (i) or (ii)
above; (b) the foregoing shall not constitute an "Equity Prepayment Event" to
the extent attributable to the issuance by VP Holding Corporation of preferred
stock on or about December 9, 1996, and the investment of the proceeds thereof,
directly or indirectly, in the Borrower; and (c) the foregoing shall not
constitute an "Equity Prepayment Event" to the extent attributable to the
issuance and sale of common stock by the Parent Corporation to a participant in
a Parent Corporation Stock Plan pursuant to the terms thereof.
"Equity Prepayment Percentage" means, with respect to the Net Cash
Proceeds of any Equity Prepayment Event, (i) 100%, if the Debt Coverage Ratio at
the time of receipt of such Net Cash Proceeds (but calculated prior to giving
effect to the receipt and application thereof) is greater than or equal to
4.0:1, (ii) 75%, if such Debt Coverage Ratio is greater than or equal to 3.0:1
but less than 4.0:1, (iii) 50%, if such Debt Coverage Ratio is greater than or
equal to 2.0:1 but less than 3.0:1 or (iv) 0.0% if such Debt Coverage Ratio is
less than 2.0:1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Lender
as it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Agent.
<PAGE>
-13-
"Euro-Dollar Loan" means at any time a loan outstanding hereunder
which bears interest at such time at a rate based on the Adjusted London
Interbank Offered Rate pursuant to a Notice of Borrowing or Notice of Interest
Rate Election.
"Euro-Dollar Margin" means (a) with respect to any Tranche B Term Loan
that is a Euro-Dollar Loan, the applicable Tranche B Margin, and (b) with
respect to any other Euro-Dollar Loan outstanding on any day:
(A) 0.75%, if such day falls within a Level I Pricing Period;
(B) 0.875%, if such day falls within a Level II Pricing Period;
(C) 1.125%, if such day falls within a Level III Pricing Period;
(D) 1.25%, if such day falls within a Level IV Pricing Period;
or
(E) 1.50%, if such day falls within a Level V Pricing Period.
"Euro-Dollar Reference Banks" means the principal London offices of
Midland Bank PLC, NationsBank of North Carolina, N.A. and Morgan Guaranty Trust
Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.05(b).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Cash Flow" means, for any period, the excess, if any, of Cash
Available for Principal Payments for such period over the sum of (a) principal
payments made during such period in respect of Term Loans, but excluding (i) any
such principal payments made pursuant to subsection (e) or (f) of Section 2.08
or clause (iv) of Section 5.11(a) plus (b) principal payments made during such
period in respect of Capital Financing Debt (other than pursuant to a
<PAGE>
-14-
refinancing) and any Debt incurred in reliance upon clause (iv) of Section
5.11(a).
"Existing Credit Agreement" means the Credit Agreement dated as of
December 9, 1996, among the Borrower, certain lenders, Morgan Guaranty Trust
Company of New York, as administrative agent, and Merrill Lynch Capital
Corporation, as documentation agent, as amended and in effect immediately prior
to the Effective Date.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of l%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
---------
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Finance Corp." means Brylane Capital Corp., a Delaware corporation,
and its successors.
"Financing Transactions" means the transactions contemplated by the
Loan Documents, including the borrowing of the Loans and the grant of security
interests under the Security Documents.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a)
the sum of (i) Adjusted EBITDA for such period plus (ii) rental expense deducted
in determining Consolidated Net Income for such period divided by (b) the sum of
rental expense and interest expense (excluding any portion of interest expense
representing amortization of financing costs paid in a previous period) deducted
in determining Consolidated Net Income for such period.
"FS&Co." means Freeman Spogli & Co., a California general partnership.
<PAGE>
-15-
"Governmental Authority" means any federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the term Guarantee shall not include endorsements for
--------
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantee Agreement" means the Guarantee Agreement among the
Subsidiaries and the Agent, substantially in the form of Exhibit C hereto, as
amended from time to time.
"Incremental Capital Expenditures" means any Capital Expenditures made
in reliance upon the proviso to Section 5.24.
"Initial Control Group" means (i) FS&Co. and its affiliates and (ii)
The Limited and its subsidiaries; provided that the Borrower and its
--------
Subsidiaries shall not be considered to be affiliates of FS&Co. or subsidiaries
of The Limited for purposes of identifying the "Initial Control Group".
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing or Notice of Interest Rate Election; provided that:
---------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall
<PAGE>
-16-
be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) if any Interest Period includes a date on which a payment of
principal of the Loans of the applicable Class is required to be made under
subsection (a), (b) or (c) of Section 2.08 but does not end on such date,
then (i) the principal amount (if any) of each Euro-Dollar Loan required to
be repaid on such date shall have an Interest Period ending on such date
and (ii) the remainder (if any) of each such Euro-Dollar Loan shall have an
Interest Period determined as set forth above; and
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending on the next Quarterly Payment Date that occurs
thereafter; provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b)(i) below) which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment of
principal of the Loans of the applicable Class is required to be made under
subsection (a), (b) or (c) of Section 2.08 but does not end on such date,
then (i) the principal amount (if any) of each Base Rate Loan required to
be repaid on such date shall have an Interest Period ending on such date
and (ii) the remainder (if any) of each such Base Rate Loan shall have an
interest Period determined as set forth above.
<PAGE>
-17-
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"Issuing Banks" means (i) Corestates Bank and (ii) any other Lender
that shall enter into an Issuing Bank Agreement as provided in Section 2.13(m),
in each case in their capacities as the issuers of Letters of Credit, and their
respective successors in such capacity.
"Issuing Bank Agreement" has the meaning set forth in Section 2.13.
"Lender" means each bank or other financial institution listed on the
signature pages hereof, each Assignee which becomes a Lender pursuant to Section
9.06(c), and their respective successors.
"Letter of Credit" means any letter of credit issued pursuant to
Section 2.13.
"Letter of Credit Disbursement" means a payment or disbursement made
by an Issuing Bank pursuant to a Letter of Credit.
"Letter of Credit Exposure" means at any time the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit plus (ii) the
aggregate amount of all Letter of Credit Disbursements not yet reimbursed by the
Borrower as provided in Section 2.13. The Letter of Credit Exposure of any
Lender at any time shall mean its Applicable Percentage of the aggregate Letter
of Credit Exposure at such time.
"Level I Pricing Period" means any period during which the Pricing
Ratio is less than or equal to 2.00:1 and no Event of Default has occurred and
is continuing.
"Level II Pricing Period" means any period during which the Pricing
Ratio is greater than 2.00:1 but less than or equal to 2.50:1 and no Event of
Default has occurred and is continuing.
<PAGE>
-18-
"Level III Pricing Period" means any period during which the Pricing
Ratio is greater than 2.50:1 but less than or equal to 3.00:1 and no Event of
Default has occurred and is continuing.
"Level IV Pricing Period" means any period during which the Pricing
Ratio is greater than 3.00:1 but less than or equal to 3.50:1 and no Event of
Default has occurred and is continuing.
"Level V Pricing Period" means any period that is not a Level I
Pricing Period, a Level II Pricing Period, a Level III Pricing Period or a Level
IV Pricing Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Term Loan or a Revolving Loan, whether made as a Base
Rate Loan or a Euro-Dollar Loan, and "Loans" means Term Loans or Revolving Loans
or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit, the Guarantee Agreement, the Trademark Collateral Agreement and the
Security Documents.
"London Interbank Offered Rate" has the meaning set forth in Section
2.05(b).
"Management Notes" means promissory notes payable to the Borrower from
members of management of the Borrower and contributed to the Borrower as an
equity investment in the Borrower; provided that the aggregate principal amount
--------
of such promissory notes at any time outstanding shall not exceed $3,500,000.
"Margin Stock" has the meaning given such term under Regulation U.
"Material Adverse Effect" means (i) a materially adverse effect on the
assets, financial condition or results
<PAGE>
-19-
of operations of the Borrower and its Consolidated Subsidiaries taken as a
whole, (ii) material impairment of the ability of the Borrower or any Subsidiary
to perform any material Obligations under the Loan Documents, or (iii) material
impairment of the rights of or benefits available to the Lenders under any Loan
Document.
"Material Debt" means Debt of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate principal amount exceeding $5,000,000.
"Maximum Subordinated Debt Prepayment" means, with respect to any
Equity Prepayment Event, (i) if the Equity Prepayment Percentage with respect
thereto is 100%, then $0.00, (ii) if the Equity Prepayment Percentage with
respect thereto is 75%, then an amount equal to 25% of the Equity Prepayment
Percentage of the Net Cash Proceeds in respect of such Equity Prepayment Event,
(iii) if the Equity Prepayment Percentage with respect thereto is 50%, then an
amount equal to 50% of the Equity Prepayment Percentage of the Net Cash Proceeds
in respect of such Equity Prepayment Event, or (iv) if the Equity Prepayment
Percentage with respect thereto is 0.0%, then $0.00; provided that, in the case
--------
of an Equity Prepayment Event occurring prior to the date that is 180 days after
December 9, 1996, "Maximum Subordinated Debt Prepayment" means an amount equal
to 35% of the Net Cash Proceeds in respect of such Equity Prepayment Event.
"Minimum Adjusted Net Worth" means, at any date, the sum of (a)
$80,000,000, plus (b) 90% (or, if as of the end of the fiscal quarter for which
an amount is being calculated for purposes of this clause (b) "Minimum Adjusted
Net Worth" exceeds $150,000,000, then 50%) of the excess of (i) Consolidated Net
Income in respect of each fiscal quarter of the Borrower ending after December
9, 1996, and prior to such date of determination (adjusted as provided below),
minus (ii) as long as the Borrower is a partnership, the decrease in
Consolidated Adjusted Net Worth attributable to Tax Advances and Tax
Distributions made in respect of the Tax Distribution Amount for such fiscal
quarter, plus (c) 90% of each increase in Consolidated Adjusted Net Worth
attributable to the issuance of additional partnership interests or equity
securities by, or capital contributions to, or other equity investments in, the
Borrower after the Effective Date; provided that (i) "Minimum Adjusted Net
--------
Worth" shall not decrease if the amount determined pursuant
<PAGE>
-20-
to clause (b) above in respect of any fiscal quarter is negative (and any such
negative amount shall be disregarded in calculating "Minimum Adjusted Net
Worth") and (ii) for purposes of clause (b) above, Consolidated Net Income shall
be adjusted to eliminate the effects thereon of [the amortization of the initial
write-up of inventories resulting from the Acquisition and any accounting
adjustments resulting from the Conversion.
"Mortgage" means a mortgage, deed of trust or other security document
granting a lien on a Mortgaged Property to secure the Obligations.
"Mortgaged Property" means each real property and the improvements
thereto identified on Schedule 2.
"Net Cash Proceeds" means, with respect to any Prepayment Event or
Reinvestment Event or any other event requiring a calculation of "Net Cash
Proceeds" hereunder, an amount equal to the cash proceeds (including insurance
proceeds and condemnation awards) received by the Borrower and its Subsidiaries
from or in respect of such event (including cash received as proceeds from any
noncash consideration received in respect of any such event), less (i) any
expenses reasonably incurred by the Borrower and its Subsidiaries in respect of
such event, (ii) in the case of an Asset Sale Prepayment Event or Reinvestment
Event, amounts required to be applied to repay Debt (other than Loans or
Subordinated Debt) associated with the assets or properties subject to such
Event and reasonable reserves established in good faith by the Borrower to
satisfy any indemnification obligations undertaken in connection with such Event
or to pay other retained liabilities associated with such assets or properties,
(iii) taxes paid or payable by the Borrower and its Subsidiaries (as determined
reasonably and in good faith by the chief financial officer or chief accounting
officer of the Borrower) in respect of such event and (iv) as long as the
Borrower is a partnership, the increase, if any, in the Tax Distribution Amount
attributable to such event (as determined reasonably and in good faith by the
chief financial officer or chief accounting officer of the Borrower).
"Net Working Investment" means, at any date (i) the consolidated
current assets of the Borrower and its Consolidated Subsidiaries (excluding
cash, Temporary Cash Investments and the unamortized portion of the initial
<PAGE>
-21-
write-up of inventories resulting from the Transactions) minus (ii) the
consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries (excluding any current liabilities in respect of Debt), all
determined as of such date. Net Working Investment at any date may be a
positive or negative number. Net Working Investment increases when it becomes
more positive or less negative and decreases when it become less positive or
more negative.
"Note" means a promissory note of the Borrower payable to a Lender,
substantially in the form of Exhibit A hereto for the applicable Class,
evidencing the obligation of the Borrower to repay the Loans made by such Lender
of a particular Class, and "Notes" means any of or all such promissory notes
issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.04.
"Obligations" means (a) the due and punctual payment by the Borrower
of (i) the principal of and interest on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under Section
2.13 in respect of any Letter of Credit Disbursement, when and as due, including
interest thereon, if any, (iii) all other monetary obligations of the Borrower
to the Agent, the Security Agent, the Issuing Banks and the Lenders under this
Agreement and the other Loan Documents to which the Borrower is or is to be a
party and (iv) all monetary obligations of the Borrower under any Rate
Protection Agreement entered into with a counterparty that was a Lender at the
time such Rate Protection Agreement was entered into, (b) the due and punctual
performance of all other obligations of the Borrower under this Agreement and
the other Loan Documents and (c) the due and punctual payment and performance of
all obligations of each Subsidiary under the Loan Documents to which it is or is
to be a party.
"Parent" means, with respect to any Lender, any Person controlling
such Lender.
<PAGE>
-22-
"Parent Corporation" means Brylane, Inc., a Delaware Corporation, and
its successors.
"Parent Corporation Stock Plan" means an employee stock purchase plan
(or similar employee benefit arrangement) for employees of the Borrower and its
Subsidiaries that is administered by the Parent Corporation and qualifies under
Section 423 of the Internal Revenue Code.
"Participant" has the meaning set forth in Section 9.06(b).
"Partnership Agreement" means the partnership agreement of the
Borrower, as amended from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means (a) any acquisition by the Borrower of
assets or properties (other than Investments) to be utilized in the Borrower's
business, or comprising a separate business of the same type conducted by the
Borrower prior to such acquisition, excluding assets and properties acquired in
the ordinary course of business or (b) any acquisition by the Borrower of all
the outstanding capital stock of a corporation; provided that (i) no Default has
--------
occurred and is continuing at the time of, or would result from, such
acquisition, (ii) the consideration paid by the Borrower in connection with such
acquisition consists entirely of cash or common stock or Permitted Preferred
Stock of the Parent Corporation, or warrants or options to acquire any such
common stock or Permitted Preferred Stock, or a combination thereof, (iii) the
aggregate cash consideration paid by the Borrower in connection with such
acquisition and all previous acquisitions constituting "Permitted Acquisitions"
does not exceed the sum of (A) $35,000,000 plus (B) the Net Cash Proceeds from
Equity Prepayment Events previously received by the Borrower minus (C) the sum
of the aggregate amount that the Borrower has expended to make Restricted
Payments pursuant to clauses (f) and (g) of Section 5.12 plus the aggregate
principal amount of Term Loans required to have been prepaid pursuant to
subsection (e) of Section 2.08 in respect of such Net Cash Proceeds and pursuant
to clause (g) of Section 5.12 in order to permit Restricted Payments thereunder,
and (iv) if such
<PAGE>
-23-
acquisition is made pursuant to clause (b) above, then (A) substantially all the
business of the acquired corporation is of the same type as the business
conducted by the Borrower prior to such acquisition, (B) the acquired
corporation does not have any Debt that will remain outstanding after giving
effect to such acquisition (other than Debt that would be permitted under clause
(vii) of Section 5.11(a) if incurred by the Borrower at the time of such
acquisition), (C) such corporation does not have any subsidiaries (other than
subsidiaries that are liquidated or merged into the Borrower within 90 days
after such acquisition or that constitute Permitted Subsidiaries) and (D) such
corporation is liquidated or merged into the Borrower within 90 days after such
acquisition. Notwithstanding the foregoing, the Acquisition shall not be
considered to be a "Permitted Acquisition".
"Permitted Preferred Stock" means preferred stock issued by the Parent
Corporation that is not subject to any mandatory redemption, repurchase or
exchange requirements.
"Permitted Subsidiary" means any Subsidiary that (i) is a Wholly Owned
Consolidated Subsidiary and (ii) complies with the requirements set forth in
Section 5.04(c) or, in the case of Finance Corp., Section 5.04(b).
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and is either (i) maintained by a
member of the ERISA Group for employees of a member of the ERISA Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions.
"Pledge Agreement" means the Pledge Agreement among the Borrower, such
Subsidiaries as shall become
<PAGE>
-24-
parties thereto and the Security Agent, substantially in the form of Exhibit D
hereto, as amended from time to time.
"Prepayment Event" means an Asset Sale Prepayment Event, a Debt
Prepayment Event or an Equity Prepayment Event.
"Pricing Ratio" means, at any date, the ratio of (i) the consolidated
Debt of the Borrower and its Consolidated Subsidiaries (excluding (a) the Letter
of Credit Exposure and the amount of any other outstanding letters of credit,
except to the extent such Letter of Credit Exposure and other outstanding
letters of credit represent unreimbursed drawings thereunder; provided that
--------
amounts excluded under this clause (a) shall not exceed $75,000,000, and (b)
contingent liabilities to repurchase accounts receivable pursuant to the Credit
Card Agreements, to the extent such contingent liabilities constitute Debt),
determined on a consolidated basis, divided by (ii) Adjusted EBITDA for the most
recent period of four consecutive fiscal quarters of the Borrower for which
financial statements have been delivered to the Agent; provided that, solely for
--------
purposes of this definition, the consolidated Debt of the Borrower and its
Consolidated Subsidiaries shall be determined for purposes of clause (i) above
on the basis of (a) Term Loans outstanding on the last day of the most recent
fiscal quarter covered by the financial statements referred to in clause (ii)
above, and (b) the daily average outstanding amount of all other Debt during
such most recent period of four consecutive fiscal quarters; provided further
----------------
that if the Acquisition or a Permitted Acquisition has occurred during the
period since the commencement of the period of four consecutive fiscal quarters
for which such Adjusted EBITDA has been determined and on or prior to such date
of determination, then such Adjusted EBITDA shall be determined on a pro forma
basis (i.e., based on the assumption that the Acquisition or such Permitted
----
Acquisition, as the case may be, occurred on the first day of such period of
four consecutive fiscal quarters) in accordance with generally accepted
accounting principles. A change in the Pricing Ratio shall be effective on the
date of receipt by the Agent of the Borrower's financial statements
demonstrating such change.
"Prime Rate" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
<PAGE>
-25-
"Quarterly Payment Date" means each day that is the last Euro-Dollar
Business Day preceding the Saturday closest to January 31, April 30, July 31 and
October 31, of each year.
"Rate Protection Agreements" means interest rate protection
agreements, foreign currency exchange agreements and other interest or exchange
rate hedging, cap, collar or swap arrangements.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reinvestment Event" has the meaning set forth in the definition of
the term "Asset Sale Prepayment Event".
"Reportable Event" means any reportable event as defined in Section
4043(b) of ERISA, or the regulations issued thereunder, with respect to a Plan
(other than those excepted from such reporting requirements by virtue thereof).
"Required Lenders" means at any time Lenders with Loans, Letter of
Credit Exposure and unused Commitments representing at least a majority of the
sum of the aggregate principal amount of Loans outstanding and the aggregate
amount of the Letter of Credit Exposure and unused Commitments at such time.
"Restricted Payment" means (a) any Tax Advance, Tax Distribution or
other distribution by the Borrower to any one or more of the partners in the
Borrower or otherwise on account of any partnership interest in the Borrower,
(b) any payment or other consideration on account of the purchase, redemption,
retirement or acquisition of (i) any partnership interest in the Borrower or any
shares of the Parent Corporation's capital stock, (ii) any option, warrant or
other right to acquire any partnership interest in the Borrower or any shares of
the Parent Corporation's capital stock, (c) any payment or prepayment of
principal of or premium (if any) or interest on or any other amount in respect
of any Subordinated Debt, or (d) any payment or other consideration on account
of the prepayment, purchase, redemption, retirement, defeasance, acquisition,
termination, cancelation or compromise of any Subordinated Debt.
<PAGE>
-26-
"Revolving Loan" means a loan made by a Lender pursuant to Section
2.01(c).
"Revolving Loan Availability Period" means the period from and
including the Effective Date to but excluding the Tranche A Maturity Date, or
such earlier date as the Revolving Loan Commitments shall have expired or been
terminated.
"Revolving Loan Commitment" means, as to any Lender, the obligation of
such Lender to make Revolving Loans to the Borrower and to acquire
participations in Letters of Credit in an aggregate principal amount at any one
time outstanding not exceeding the amount set forth opposite such Lender's name
in Schedule 1 hereto under the caption "Revolving Loan Commitment", as the same
may be reduced from time to time pursuant to Section 2.07 and subject to the
limitations of Sections 2.01(c) and 2.13.
"Security Agent" means Morgan Guaranty Trust Company of New York in
its capacity as security agent under the Security Documents and its successors
in such capacity.
"Security Agreement" means the Security Agreement among the Borrower,
its Subsidiaries and the Security Agent, substantially in the form of Exhibit E
hereto, as amended from time to time.
"Security Documents" means the Mortgages, the Pledge Agreement, the
Security Agreement and all other security agreements, mortgages, deeds of trust
and other documents and instruments executed and delivered pursuant to Section
5.08 in order to secure any Obligations.
"Subordinated Debt" means the Convertible Subordinated Debt and Debt
in respect of the Subordinated Notes or any Debt incurred in compliance with
clause (ii) of Section 5.11(a) to refinance the Convertible Subordinated Debt or
the Subordinated Notes.
"Subordinated Debt Documents" means any indentures, notes or other
agreements, instruments or securities evidencing or governing the terms of any
Subordinated Debt, including any agreements or instruments pursuant to which any
Subordinated Debt is guaranteed or secured.
<PAGE>
-27-
"Subordinated Debt Prepayment Amount" has the meaning set forth in
Section 2.08(e).
"Subordinated Guarantee Agreement" means an agreement pursuant to
which a Subsidiary Guarantees Subordinated Debt and which (i) is required by the
terms of a Subordinated Debt Document, (ii) is subordinated to such Subsidiary's
Debt in respect of the Obligations on the same terms that the Subordinated Debt
is required to be subordinated, (iii) is unsecured and (iv) does not impose any
additional covenants or other obligations (other than covenants and obligations
already contained in the Subordinated Debt Documents which become applicable by
virtue of such agreement) upon such Subsidiary.
"Subordinated Notes" means the senior subordinated notes due September
1, 2003 jointly issued by the Borrower and Finance Corp. in the aggregate
principal amount of $125,000,000.
"Subsidiary" means any corporation or other entity (including any
partnership) of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned by the
Borrower.
"Tax Advance" means any loan made to a partner in the Borrower in
accordance with Section 5.01(c) of the Partnership Agreement.
"Tax Distribution" means any distribution made to a partner in the
Borrower in accordance with Section 5.01(b) or (d) of the Partnership Agreement.
"Tax Distribution Amount" means, in respect of any period during which
the Borrower is a partnership, an amount equal to (a) the sum of the highest
marginal Federal income tax rate and highest state and local income or franchise
tax rate applicable to any corporate partner in the Borrower on its income from
the Borrower for such period, expressed as a percentage, multiplied by (b) the
Borrower's taxable income for such period; provided that (i) the foregoing shall
--------
be determined giving effect to the deduction of state and local income and
franchise taxes for purposes of determining Federal income taxes, (ii) the
foregoing shall be determined giving effect to any carryforward of cumulative
tax losses
<PAGE>
-28-
of the Borrower from any previous period (to the extent not previously utilized)
since the organization of the Borrower and any investment tax credits and other
tax credits generated by the Borrower and (iii) the tax rates determined
pursuant to clause (a) above shall be based on the actual tax rates applicable
to the Parent Corporation. The "Tax Distribution Amount" for any period may be
estimated for any period, provided that such estimate is reasonably made by the
Borrower's chief financial officer or chief accounting officer in good faith,
but in the event that the Borrower files any Federal income tax return that is
inconsistent with its estimate for any period (or in the event that it is
subsequently determined that such estimate or the amounts reflected in any such
Federal income tax return were incorrect) then an appropriate adjustment shall
be made to the Tax Distribution Amount for the next succeeding period or periods
to reflect such discrepancy. The "Tax Distribution Amount" also shall be
increased by the amount of any Tax Distribution to be made in accordance with
Section 5.01(d) of the Partnership Agreement.
"Temporary Cash Investment" means any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) commercial paper
rated in the highest grade by a nationally recognized credit rating agency,
(iii) time deposits with, including certificates of deposit issued by, any
office located in the United States of any bank or trust company which is
organized under the laws of the United States or any state thereof and has
capital, surplus and undivided profits aggregating at least $500,000,000, (iv)
repurchase agreements with respect to securities described in clause (i) above
entered into with an office of a bank or trust company meeting the criteria
specified in clause (iii) above, or (v) any mutual fund managed by a reputable
investment manager that invests substantially all of its assets in Investments
of the type described in clauses (i), (ii), (iii) or (iv) above; provided in
--------
each case that such Investment matures within one year from the date of
acquisition thereof by the Borrower or a Subsidiary (except that an Investment
described in clause (v) above need not satisfy the foregoing maturity
requirement, but such Investment shall be subject to redemption on demand and
the Investments made by such mutual fund shall satisfy the foregoing maturity
requirement).
<PAGE>
-29-
"Term Commitment" means a Tranche A Term Commitment or a Tranche B
Term Commitment.
"Term Loan" means a Tranche A Term Loan or a Tranche B Term Loan.
"Termination Date" means the last day of the Revolving Loan
Availability Period or such earlier date as the Revolving Loan Commitments shall
have expired or been terminated, all Revolving Loans have been repaid in full,
all Letter of Credit Disbursements shall have been repaid in full, and all
Letters of Credit shall have expired or been canceled.
"The Limited" means The Limited, Inc., a Delaware corporation, and its
successors.
"Trademark Agreements" means, collectively, (i) the Trademark License
Agreement and the Electronic Media Trademark License Agreement previously
entered into among certain subsidiaries of The Limited as contemplated by the
Transaction Agreement, the rights of the licensees under which have been
assigned to the Borrower, as amended from time to time and (ii) each of (A) the
Assignment and License of Trademarks Agreement among The TJX Companies, Inc.,
Chadwick's, Inc. and the Borrower, as amended from time to time, (B) the
Trademarks License Agreement among The TJX Companies, Inc. and the Borrower, as
amended from time to time, and (C) the Trademarks License Agreement among the
TJX Companies, Inc. and Chadwick's Trade Name Sub, Inc., as amended from time to
time, each as entered into in connection with the Acquisition.
"Trademark Collateral Agreement" means the Trademark Collateral
Agreement among each of The Limited, certain subsidiaries thereof and the
Security Agent, substantially in the form of Exhibit F hereto, as amended from
time to time.
"Tranche A Maturity Date" means the last Euro-Dollar Business Day
preceding the Saturday closest to January 31, 2002.
"Tranche A Term Commitment" means, as to any Lender, the obligation of
such Lender to make Tranche A Term Loans to the Borrower in an aggregate
principal amount not exceeding the amount set forth opposite such Lender's name
<PAGE>
-30-
in Schedule 1 hereto under the caption "Tranche A Term Commitment", as the same
may be reduced from time to time pursuant to Section 2.07.
"Tranche A Term Loan" means a loan made by a Lender pursuant to
Section 2.01(a).
"Tranche B Margin" means (a) with respect to any Tranche B Term Loan
outstanding on any day that is a Base Rate Loan:
(1) 0.625%, if such day falls within a Level I Pricing Period, a
Level II Pricing Period or a Level III Pricing Period;
(2) 0.75%, if such day falls within a Level IV Pricing Period;
or
(3) 1.00%, if such day falls within a Level V Pricing Period;
and
b) with respect to any Tranche B Term Loan outstanding on any day that is a
Euro-Dollar Loan:
(1) 1.625%, if such day falls within a Level I Pricing Period, a
Level II Pricing Period or a Level III Pricing Period;
(2) 1.75%, if such day falls within a Level IV Pricing Period;
or
(3) 2.00%, if such day falls within a Level V Pricing Period.
"Tranche B Maturity Date" means the last Euro-Dollar Business Day of
the month of February 2003.
"Tranche B Term Commitment" means, as to any Lender, the obligation of
such Lender to make Tranche B Term Loans to the Borrower in an aggregate
principal amount not exceeding the amount set forth opposite such Lender's name
in Schedule 1 hereto under the caption "Tranche B Term Commitment", as the same
may be reduced from time to time pursuant to Section 2.07.
"Tranche B Term Loan" means a loan made by a Lender pursuant to
Section 2.01(b).
<PAGE>
-31-
"Transaction Agreement" means the Transaction Agreement dated as of
July 13, 1993, among VGP, VLP and certain subsidiaries of The Limited, as
amended from time to time.
"Transaction Documents" means (i) the Transaction Agreement, the
Partnership Agreement, the Credit Card Agreements, the Asset Purchase Agreements
and the Trademark Agreements and (ii) any and all contracts and agreements in
effect on the Effective Date between the Borrower and any Subsidiary, on the one
hand, and any Person in the Initial Control Group, on the other hand.
"Transactions" means the Financing Transactions and the Acquisition.
"Type" has the meaning set forth in Section 1.03.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested benefits under
such Plan exceeds (ii) the fair market value of all Plan assets, all determined
as of the then most recent valuation date for such Plan based on the actuarial
assumptions used to fund the Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA Group to the PBGC or
the Plan under Title IV of ERISA.
"VGP" means VGP Corporation, a Delaware corporation, and its
successors.
"VLP" means VLP Corporation, a Delaware corporation, and its
successors.
"Wholly Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
------------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a
<PAGE>
-32-
basis consistent (except for changes concurred in by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the
Lenders; provided that, if the Borrower notifies the Agent that the Borrower
--------
wishes to amend any covenant contained in Article V or the definition of
"Pricing Ratio" to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant or such definition (or
if the Agent notifies the Borrower that the Required Lenders wish to amend any
such covenant or such definition for such purpose), then the Borrower's
compliance with such covenant or the calculation of the Pricing Ratio, as
applicable, shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such amendment becomes effective in accordance with this Agreement.
SECTION 1.03. Types of Borrowings. The term "Borrowing" refers to
--------------------
the portion of the aggregate principal amount of Loans of any Class outstanding
hereunder which bears interest of a specific Type and for a specific Interest
Period (subject to clauses (1)(c), and (2)(b) of the definition of Interest
Period) pursuant to a Notice of Borrowing or Notice of Interest Rate Election.
Each Lender's ratable share of each Borrowing is referred to herein as a
separate "Loan". Borrowings and Loans hereunder are distinguished by "Class"
and by "Type". The "Class" of a Loan (or of a Commitment to make such a Loan or
of a Borrowing comprising such Loans) refers to whether such Loan is a Tranche A
Term Loan, a Tranche B Term Loan or a Revolving Loan, each of which constitutes
a Class. The "Type" of a Loan refers to whether such Loan is a Base Rate Loan
or a Euro-Dollar Loan. Borrowings and Loans may be identified by both Class and
Type (e.g., a "Tranche A Euro-Dollar Loan" is a Loan which is both a Tranche A
----
Term Loan and a Euro-Dollar Loan).
<PAGE>
-33-
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. (a) Tranche A Term Loans. Each
-------------------- ---------------------
Lender having a Tranche A Term Loan Commitment severally agrees, on the terms
and conditions set forth in this Agreement, to make a loan to the Borrower on
the Effective Date in an aggregate principal amount not exceeding its Tranche A
Term Commitment.
(b) Tranche B Term Loans. Each Lender having a Tranche B term Loan
---------------------
Commitment severally agrees, on the terms and conditions set forth in this
Agreement, to make a loan to the Borrower on the Effective Date in an aggregate
principal amount not exceeding its Tranche B Term Commitment.
(c) Revolving Loans. Each Lender having a Revolving Loan Commitment
----------------
severally agrees, on the terms and conditions set forth in this Agreement, to
make loans to the Borrower from time to time during the Revolving Loan
Availability Period; provided that the aggregate principal amount of such
--------
Lender's loans at any one time outstanding shall not exceed the excess of (i)
the lesser of its Revolving Loan Commitment or its Applicable Percentage of the
Borrowing Base at such time, over (ii) its Letter of Credit Exposure at such
time. Within the foregoing limit, the Borrower may borrow under this subsection
(c), repay or (to the extent permitted by Section 2.09) prepay loans made under
this subsection (c) and reborrow at any time during the Revolving Loan
Availability Period under this subsection (c).
(d) Borrowings Ratable. Each Borrowing under subsection (a), (b) or
-------------------
(c) of this Section 2.01 shall be made from the Lenders ratably in proportion to
their respective Commitments of the relevant Class.
SECTION 2.02. Method of Borrowing. (a) The Borrower shall give the
--------------------
Agent notice (a "Notice of Borrowing") not later than 10:00 A.M. (New York
City time) on the date of any Base Rate Borrowing and not later than
<PAGE>
-34-
10:00 A.M. (New York City time) at least three Euro-Dollar Business Days before
each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing, which shall be $5,000,000
or a larger multiple of $1,000,000 (except that any Borrowing may be in the
aggregate amount of the unused Commitment of the applicable Class);
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Lender of the contents thereof and of such Lender's share of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(c) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Lender shall (except as provided in subsection (d) of this
Section) make available its share of such Borrowing, in Federal or other funds
immediately available in New York City, to the Agent at its address specified in
or pursuant to Section 10.01. Unless the Agent determines that any applicable
condition specified in Article III has not been satisfied, the Agent will make
the funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
(d) If any Lender makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Lender,
such Lender shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Lender to
the Agent as provided in
<PAGE>
-35-
subsection (b), or remitted by the Borrower to the Agent as provided in Section
2.10, as the case may be.
(e) If the Agent has not received from the Borrower the payment
required by Section 2.13(g) by 12:30 P.M. (New York City time) on the date on
which an Issuing Bank has notified the Borrower and the Agent that payment of a
draft presented under any Letter of Credit will be made, as provided in Section
2.13(g), the Agent will promptly notify such Issuing Bank and each Lender of the
Letter of Credit Disbursement and, in the case of each Lender, its Applicable
Percentage of such Letter of Credit Disbursement. Not later than 2:00 P.M. (New
York City time) on such date, each Lender shall make available such Lender's
Applicable Percentage of such Letter of Credit Disbursement, in Federal or other
funds immediately available in New York City, to the Agent at its address
specified in or pursuant to Section 9.01, and the Agent will promptly make such
funds available to the applicable Issuing Bank. The Agent will promptly remit
to each Lender that shall have made such funds available its Applicable
Percentage of any amounts subsequently received by the Agent from the Borrower
in respect of such Letter of Credit Disbursement.
(f) Unless the Agent shall have received notice from a Lender prior
to the date of any Borrowing, or prior to the time of any required payment by
such Lender in respect of a Letter of Credit Disbursement, that such Lender will
not make available to the Agent such Lender's share of such Borrowing or
payment, the Agent may assume that such Lender has made such share available to
the Agent on the date of such Borrowing or payment in accordance with
subsections (c) and (d) or (e), as applicable, of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower or
an Issuing Bank, as applicable, on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such share available to the
Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available by the Agent until the
date such amount is repaid to the Agent, at (i) in the case of the Borrower, a
rate per annum equal to the higher of the Federal Funds Rate and the interest
rate applicable thereto pursuant to Section 2.05 or Section 2.13(g), as
applicable, and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay
<PAGE>
-36-
to the Agent such corresponding amount in respect of a Borrowing, such amount so
repaid shall constitute such Lender's Loan included in such Borrowing for
purposes of this Agreement.
SECTION 2.03. Notes. (a) Each Lender's Tranche A Term Loans,
------
Tranche B Term Loans and Revolving Loans shall be evidenced by a separate Note
(in the form applicable to such Class) payable to the order of such Lender for
the account of its Applicable Lending Office in an amount equal to (i) in the
case of its Note evidencing Tranche A Term Loans or Tranche B Term Loans, the
aggregate principal amount of Term Loans of such Class made by such Lender (or
its predecessor in interest) on the Effective Date, or (ii) in the case of its
Note evidencing Revolving Loans, the aggregate Commitment of such Lender of such
Class.
(b) Each Lender may, by notice to the Borrower and the Agent, request
that its Loans of a particular Type and Class be evidenced by a separate Note.
Each such Note shall be in substantially the form of Exhibit A hereto applicable
to the relevant Class with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant Type. Each reference in this Agreement
to the "Note" or "Notes" of such Lender shall be deemed to refer to and include
any or all of such Notes, as the context may require.
(c) Upon receipt of each Lender's Note or Notes pursuant to Section
3.01(b), the Agent shall mail such Note or Notes to such Lender. Each Lender
shall record the date and amount of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect thereto, and
prior to any transfer of any of its Notes shall endorse on the schedule forming
a part thereof appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding; provided that the failure of any
--------
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Notes. Each Lender is hereby
irrevocably authorized by the Borrower so to endorse its Note and to attach to
and make a part of its Note a continuation of any such schedule as and when
required.
SECTION 2.04. Interest Rate Elections. (a) The initial Type of
------------------------
Loans comprising each Borrowing, and the
<PAGE>
-37-
duration of the initial Interest Period applicable thereto if they are initially
Euro-Dollar Loans, shall be as specified in the applicable Notice of Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
Type of, or the duration of the Interest Period applicable to, the Loans
included in any Borrowing (excluding overdue Loans and subject in each case to
the provisions of the definition of Interest Period and Article VIII), as
follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
designate such Loans as Euro-Dollar Loans, may elect to continue such Loans
as Base Rate Loans for an additional Interest Period, or may elect to
designate such Loans as any combination of Base Rate Loans and Euro-Dollar
Loans; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
designate such Loans as Base Rate Loans, may elect to continue such Loans
as Euro-Dollar Loans for an additional Interest Period, or may elect to
designate such Loans as any combination of Base Rate Loans and Euro-Dollar
Loans.
Notwithstanding the foregoing, the Borrower may not elect an Interest Period for
Euro-Dollar Loans of any Class unless (A) the aggregate outstanding principal
amount of such Euro-Dollar Loans (including any such Euro-Dollar Loans of the
same Class made pursuant to Section 2.01 on the date that such Interest Period
is to begin) to which such Interest Period will apply is at least $5,000,000 and
(B) such election will not result in the total number of outstanding Euro-Dollar
Borrowings exceeding 10 at any time.
(b) Any election permitted by subsection (a) of this Section may
become effective on any Euro-Dollar Business Day specified by the Borrower (the
"Election Date"); provided that the Borrower may not specify an Election Date
--------
with respect to an outstanding Euro-Dollar Loan that is not the last day of the
Interest Period therefor. Each such election shall be made by the Borrower by
delivering a notice (a "Notice of Interest Rate Election") to the Agent not
later than 10:00 A.M. (New York City time) at least one Domestic Business Day
before the Election Date, if all the resulting Loans will be Base Rate Loans,
and at least three Euro-Dollar Business Days before the Election Date, if the
resulting Loans will include Euro-
<PAGE>
-38-
Dollar Loans. Each Notice of Interest Rate Election shall specify with respect
to the outstanding Loans to which such notice applies:
(i) the Election Date;
(ii) if the Type of Loan is to be changed, the new Type of Loan and,
if such new Type is a Euro-Dollar Loan, the duration of the first Interest
Period applicable thereto;
(iii) if such Loans are Euro-Dollar Loans and the Type of such Loans
is to be continued for an additional or different Interest Period, the
duration of such additional or different Interest Period; and
(iv) if such Loans are to be designated as a combination of Base Rate
Loans and Euro-Dollar Loans, the information specified in clauses (i)
through (iii) above as to each resulting Borrowing and the aggregate amount
of each such Borrowing.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period and the last
sentence of subsection (a) of this Section.
(c) Upon receipt of a Notice of Interest Rate Election, the Agent
shall promptly notify each Lender of the contents thereof and of such Lender's
share of such Borrowing and such notice shall not thereafter be revocable by the
Borrower.
(d) If the Borrower (i) fails to deliver a timely Notice of Interest
Rate Election to the Agent electing to continue or change the Type of, or the
duration of the Interest Period applicable to, the Loans included in any
Borrowing as provided in this Section and (ii) has not theretofore delivered a
notice of prepayment relating to such Loans, then the Borrower shall be deemed
to have given the Agent a Notice of Interest Rate Election electing to change
the Type of such Loans to (or continue the Type thereof as) Base Rate Loans,
with an Interest Period commencing on the last day of the then current
Interest Period.
<PAGE>
-39-
SECTION 2.05. Interest Rates. (a) Each Base Rate Loan shall bear
---------------
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the sum of
the applicable Base Rate Margin at the time and the Base Rate for such day.
Such interest shall be payable for each Interest Period on the last day thereof.
Any overdue principal of and, to the extent permitted by law, overdue interest
on any Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the rate otherwise
applicable to such Base Rate Loan for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the applicable Euro-Dollar Margin at the time plus
the applicable Adjusted London Interbank Offered Rate. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than three months, at intervals of three months after the first
day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100 of l%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upwards, if necessary, to the next higher 1/16 of l%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the
<PAGE>
-40-
Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Lender to United States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
(c) Any overdue principal of and, to the extent permitted by law,
overdue interest on any Euro-Dollar Loan shall bear interest, payable on demand,
for each day from and including the date payment thereof was due to but
excluding the date of actual payment, at a rate per annum equal to the sum of 2%
plus the higher of (i) the sum of the applicable Euro-Dollar Margin at the time
plus the Adjusted London Interbank Offered Rate applicable to such Loan and (ii)
the applicable Euro-Dollar Margin at the time plus the quotient obtained
(rounded upwards, if necessary, to the next higher 1/100 of l%) by dividing (x)
the average (rounded upwards, if necessary, to the next higher 1/16 of 1%) of
the respective rates per annum at which one-day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other period of
time not longer than three months as the Agent may select) deposits in dollars
in an amount approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such Euro-Dollar Reference Bank in
the London interbank market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the
circumstances described in clause (a) or (b) of Section 8.01 shall exist, at a
rate per annum equal to the sum of 2% plus the rate applicable to Base Rate
Loans for such day).
(e) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
participating Lenders by telecopy, telex or cable of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(f) Each Euro-Dollar Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as
<PAGE>
-41-
contemplated by this Section. If any Euro-Dollar Reference Bank does not furnish
a timely quotation, the Agent shall determine the relevant interest rate on the
basis of the quotation or quotations furnished by the remaining Euro-Dollar
Reference Bank or Banks or, if none of such quotations is available on a timely
basis, the provisions of Section 8.01 shall apply.
SECTION 2.06. Commitment Fees. During the period from and including
----------------
the date of execution and delivery of this Agreement to but excluding the last
day of the Revolving Loan Availability Period, the Borrower shall pay to the
Agent for the account of the Lenders ratably in proportion to their Revolving
Loan Commitments a commitment fee at the applicable rate specified below on the
daily average amount by which the aggregate amount of the Revolving Loan
Commitments exceeds the sum of the Letter of Credit Exposure and the aggregate
outstanding principal amount of the Revolving Loans. Such commitment fee shall
accrue at the rate of (i) 0.25% per annum during any Level I Pricing Period,
(ii) 0.30% per annum during any Level II Pricing Period, (iii) 0.375% per annum
during any Level III Pricing Period or Level IV Pricing Period or (iv) 0.4375%
during any Level V Pricing Period. If the rate at which the commitment fee
accrues shall change, the daily average amount referred to above shall be
determined separately for the periods before and after such change. During the
period from and including the date of execution and delivery of this Agreement
to but excluding the Effective Date or earlier termination of the Term
Commitments, the Borrower shall pay to the Agent for the account of the Lenders
ratably in proportion to their Term Commitments a commitment fee at the rate of
0.50% per annum on the amount of their respective Term Commitments. All such
commitment fees shall accrue from and including the date of execution and
delivery of this Agreement to but excluding, in the case of the Term
Commitments, the Effective Date or earlier termination of the Term Commitments,
or, in the case of the Revolving Loan Commitments, the last day of the Revolving
Loan Availability Period. Accrued commitment fees under this paragraph shall be
calculated by the Agent as of the Effective Date, as of each Quarterly Payment
Date and as of the date of termination of the Revolving Loan Commitments in
their entirety. The Agent shall make such calculation and notify the Borrower
of the amount so calculated within three Domestic Business Days after each date
as of which such calculation is so required, and such fees shall be payable
<PAGE>
-42-
by the Borrower upon receipt of such notice, except that commitment fees accrued
prior to the Effective Date or any earlier termination of the Commitments shall
be payable on such date.
SECTION 2.07. Termination or Reduction of Commitments. (a) During
----------------------------------------
the Revolving Loan Availability Period, the Borrower may, upon at least three
Domestic Business Days' notice to the Agent, (i) terminate the Revolving Loan
Commitments at any time, if there is no Letter of Credit Exposure at such time
and if no Revolving Loans are outstanding at such time, or (ii) ratably reduce
from time to time by an aggregate amount of $5,000,000 or any larger multiple of
$1,000,000 the aggregate amount of the Revolving Loan Commitments in excess of
the sum of the Letter of Credit Exposure and the aggregate outstanding principal
amount of the Revolving Loans; provided that the Borrower may not terminate or
--------
reduce the Revolving Loan Commitments pursuant to this subsection (a) at any
time that any Term Loans remain outstanding.
(b) After the Term Loans have been fully repaid, the Revolving Loan
Commitments shall be ratably reduced at each time that a prepayment would have
been required in respect of the Term Loans pursuant to subsection (e) or (f) of
Section 2.08 if Term Loans were then outstanding, by an amount equal to the
prepayment that would have been so required.
(c) The Term Commitments of each Class shall automatically terminate
at the close of business on the Effective Date.
SECTION 2.08. Mandatory Repayments and Prepayments. (a) Subject to
--------------------------------------
adjustment as provided in subsection (j) of this Section, on each date specified
below the Borrower shall repay (i) Tranche A Term Loans in the aggregate amount,
if any, set forth under the caption "Tranche A Amount" opposite such date and
(ii) Tranche B Term Loans in the aggregate amount, if any, set forth under the
caption "Tranche B Amount" opposite such date:
<TABLE>
<CAPTION>
Tranche A Amount Tranche B Amount
---------------- ----------------
<S> <C> <C>
August 2, 1997 $3,336,854.46 $ 250,000
November 1, 1997 $3,336,854.46 $ 250,000
January 31, 1998 $3,336,854.46 $ 250,000
May 2, 1998 $5,338,967.14 $ 250,000
August 1, 1998 $5,338,967.14 $ 250,000
</TABLE>
<PAGE>
-43-
<TABLE>
<CAPTION>
Tranche A Amount Tranche B Amount
---------------- ----------------
<S> <C> <C>
October 31, 1998 $5,338,967.14 $ 250,000
January 30, 1999 $5,338,967.14 $ 250,000
May 1, 1999 $6,006,338.03 $ 250,000
July 31, 1999 $6,006,338.03 $ 250,000
October 30, 1999 $6,006,338.03 $ 250,000
January 29, 2000 $6,006,338.03 $ 250,000
April 29, 2000 $6,673,708.92 $ 250,000
July 29, 2000 $6,673,708.92 $ 250,000
October 28, 2000 $6,673,708.92 $ 250,000
February 3, 2001 $6,673,708.92 $ 250,000
May 5, 2001 $7,074,131.46 $ 250,000
August 4, 2001 $7,074,131.46 $ 250,000
November 3, 2001 $7,074,131.46 $ 250,000
February 2, 2002 $8,354,131.46 $ 250,000
May 4, 2002 $11,000,000
August 3, 2002 $11,000,000
November 2, 2002 $11,000,000
February 1, 2003 $11,000,000
Tranche B Maturity Date $21,250,000
</TABLE>
(b) Any Tranche A Term Loans outstanding on the Tranche A Maturity
Date shall be due and payable on such date, together with accrued interest
thereon. Any Tranche B Term Loans outstanding on the Tranche B Maturity Date
shall be due and payable on such date, together with accrued interest thereon.
(c) Any Revolving Loans outstanding on the Termination Date shall be
due and payable on such date, together with accrued interest thereon.
(d) In the event and on each occasion that the sum of the Letter of
Credit Exposure plus the aggregate outstanding principal amount of the Revolving
Loans exceeds the lesser of the Borrowing Base or the sum of the Revolving Loan
Commitments, the Borrower shall forthwith prepay Revolving Loans (or, if no
Revolving Loans are outstanding, provide cash collateral in respect of the
Letter of Credit Exposure pursuant to Section 2.13(k) and thereupon such cash
shall be deemed to reduce the Letter of Credit Exposure by an equivalent amount
solely for purposes of this subsection) in an amount equal to such excess.
(e) In the event and on each occasion after the Effective Date that a
Prepayment Event occurs, the Borrower shall, promptly following (and in any
event not later than the Domestic Business Day next following) the receipt of
Net
<PAGE>
-44-
Cash Proceeds in respect of such Prepayment Event, prepay Term Loans as
provided in subsection (i) of this Section in an aggregate principal amount
equal to 100% of such Net Cash Proceeds, in the case of an Asset Sale Prepayment
Event or Debt Prepayment Event, or the applicable Equity Prepayment Percentage
of such Net Cash Proceeds, in the case of an Equity Prepayment Event; provided
--------
that (i) no such prepayment shall be required in an aggregate principal amount
less than $1,000,000 and any receipt of Net Cash Proceeds that would otherwise
result in prepayment of a lesser amount shall cumulate until the aggregate
amount of Net Cash Proceeds from Prepayment Events received and not yet applied
hereunder equals or exceeds $1,000,000, at which time such prepayment shall be
made, and (ii) in the case of an Equity Prepayment Event, if no Default has
occurred and is continuing at the time, the Borrower may, at its option, elect
by notice delivered to the Agent on or prior to the date that the prepayment in
respect of such event would be required pursuant to the foregoing provisions of
this subsection (e), to apply an amount specified in such notice (the amount so
specified, the "Subordinated Debt Prepayment Amount") to purchase, redeem,
prepay or acquire Subordinated Debt in accordance with clause (f) of Section
5.12; provided that the Subordinated Debt Prepayment Amount in respect of any
--------
Equity Prepayment Event shall not exceed the Maximum Subordinated Debt
Prepayment with respect thereto. If the Borrower delivers to the Agent a notice
with respect to an Equity Prepayment Event as provided in clause (ii) above,
then the prepayment of Term Loans required pursuant to this subsection (e) with
respect to such event shall be reduced by the Subordinated Debt Prepayment
Amount specified in such notice; provided that on the date 90 days after the
--------
date that such prepayment would have been required the Borrower shall deliver to
the Agent a certificate specifying the aggregate amount of Restricted Payments
made pursuant to clause (f) of Section 5.12 in respect of the applicable Equity
Prepayment Event and shall prepay Term Loans in an aggregate principal amount
equal to the excess, if any, of the Subordinated Debt Prepayment Amount
specified by the Borrower in its notice to the Agent referred to above over the
aggregate amount of Restricted Payments so made.
(f) As promptly as practicable but in any event within 90 days after
the end of each fiscal year of the Borrower, commencing with the fiscal year
ending on the Saturday closest to January 31, 1998, the Borrower shall prepay
Term Loans as provided in subsection (i) of this
<PAGE>
-45-
Section in an aggregate principal amount equal to the Excess Cash Flow with
respect to such fiscal year multiplied by (i) 67%, if the Debt Coverage Ratio as
of the last day of such fiscal year was greater than or equal to 2.50:1 or (ii)
50%, if the Debt Coverage Ratio as of the last day of such fiscal year was less
than 2.50:1 but greater than or equal to 2.00:1; provided that no prepayment
--------
shall be required pursuant to this subsection (f) with respect to the Excess
Cash Flow for any fiscal year if the Debt Coverage Ratio as of the last day of
such fiscal year was less than 2.00:1. The Borrower shall deliver to the Agent
at or prior to the time of each prepayment pursuant to this subsection (f) a
certificate executed by the chief financial officer of the Borrower setting
forth, in a form acceptable to the Agent, a reasonably detailed calculation of
the amount of such prepayment.
(g) On the date of each repayment or prepayment of Loans pursuant to
this Section, the Borrower shall pay interest accrued on the principal amount
repaid or prepaid to the day of repayment or prepayment. The repayments and
prepayments of the Loans required by the respective subsections of this
Section and the optional prepayments permitted by Section 2.09 are separate and
cumulative, so that any one such repayment or prepayment shall reduce any other
repayment or prepayment only as and to the extent specified in subsection (j)
of this Section.
(h) Prior to the date of each mandatory repayment or prepayment
pursuant to this Section, the Borrower shall, by notice to the Agent given not
later than 11:00 A.M. (New York City time) on the third Euro-Dollar Business Day
prior to the date of such repayment or prepayment, select which outstanding
Borrowings of the required Class are to be repaid or prepaid (in accordance with
subsection (i) of this Section, if applicable); provided that the Borrower shall
--------
not elect to prepay any Euro-Dollar Borrowing if a Base Rate Borrowing of the
required Class is outstanding. Upon receipt of such notice, the Agent shall
promptly notify each Lender of the contents thereof and of such Lender's ratable
share of such prepayment, and such notice shall not thereafter be revocable by
the Borrower. Each such repayment or prepayment shall be applied to repay or
prepay ratably the respective Loans included in the Borrowings so selected.
(i) In the event of any mandatory prepayment of Term Loans pursuant
to subsection (e) or (f) of this
<PAGE>
-46-
Section, or any optional prepayment of Term Loans pursuant to Section 2.09, at a
time when Term Loans of both Classes remain outstanding, the Borrower shall
select Borrowings to be prepaid so that the aggregate amount of each such
prepayment is allocated between Borrowings of Tranche A Term Loans and
Borrowings of Tranche B Term Loans pro rata based on the aggregate principal
amount of outstanding Term Loans of each such Class; provided that any Lender
--------
holding a Tranche B Term Loan may elect, by notice to the Agent prior to the
prepayment date, to decline all or any portion of any such prepayment of its
Tranche B Term Loans (other than an optional prepayment of its Tranche B Term
Loans pursuant to Section 2.09, which may not be declined), in which case the
aggregate amount that would have been applied to prepay Tranche B Term Loans but
was so declined shall be applied to prepay Tranche A Term Loans.
(j) Any mandatory prepayment of the Term Loans of either Class
pursuant to subsection (e) or (f) of this Section, and any optional prepayment
of the Term Loans of either Class pursuant to Section 2.09, shall be applied to
reduce the remaining scheduled repayments of the Term Loans of such Class
pursuant to subsection (a) of this Section pro rata, except as provided in
clause (iv) of Section 5.11(a) with respect to a Debt Prepayment Event.
SECTION 2.09. Optional Prepayments. (a) Subject to subsection (b)
---------------------
below, the Borrower may, upon at least one Domestic Business Day's notice to the
Agent, in the case of Base Rate Borrowings, or three Euro-Dollar Business Days'
notice to the Agent, in the case of Euro-Dollar Borrowings, prepay any Borrowing
in whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such notice of prepayment shall specify which outstanding Borrowing is to
be prepaid in connection therewith. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Lenders included in such
Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not
voluntarily prepay all or any portion of the principal amount of any Euro-Dollar
Borrowing prior to the end of the related Interest Period. Any prepayment of a
Borrowing pursuant to this Section that includes Term Loans
<PAGE>
-47-
of either Class shall be subject to the requirements of subsection (i) of
Section 2.08.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Lender of the contents thereof and of such
Lender's ratable share of such prepayment and such notice shall not thereafter
be revocable by the Borrower.
SECTION 2.10. General Provisions as to Payments. (a) The Borrower
----------------------------------
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 9.01. The Agent will promptly distribute
to each Lender its ratable share of each such payment received by the Agent for
the account of the Lenders. Whenever any payment of principal of, or interest
on, the Base Rate Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at the Federal Funds Rate.
<PAGE>
-48-
SECTION 2.11. Funding Losses. If any payment of principal with
---------------
respect to any Euro-Dollar Loan (pursuant to Article II, VI or VIII or
otherwise) is made on any day other than the last day of the Interest Period
applicable thereto, or the end of an applicable period fixed pursuant to Section
2.05(c), or if the Borrower fails to borrow, continue or prepay any Euro-Dollar
Loans after notice has been given to any Lender in accordance with Section 2.02,
2.04 or 2.08, the Borrower shall reimburse each Lender within 15 days after
demand for any resulting loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including (without limitation)
any loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow, provided that such Lender shall have delivered to the
--------
Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.12. Computation of Interest and Fees. Interest based on the
---------------------------------
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All fees and other
interest shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.13. Letters of Credit. (a) The Borrower may request the
------------------
issuance, extension or renewal of Letters of Credit, in a form reasonably
acceptable to the Agent and the applicable Issuing Bank, appropriately
completed, for the account of the Borrower, at any time and from time to time
during the Revolving Loan Availability Period; provided that any Letter of
--------
Credit shall be issued only if, and each request by the Borrower for the
issuance of any Letter of Credit shall be deemed a representation and warranty
of the Borrower that, immediately following the issuance of any such Letter of
Credit, (i) the Letter of Credit Exposure shall not exceed $75,000,000, (ii) the
sum of the Letter of Credit Exposure and the aggregate principal amount of
outstanding Revolving Loans shall not exceed the then current Borrowing Base and
(iii) the sum of the Letter of Credit Exposure and the aggregate principal
amount of outstanding Revolving Loans shall not exceed the aggregate Revolving
Loan Commitments at the time.
<PAGE>
-49-
(b) Each Letter of Credit shall expire at the close of business on
the date that is five Domestic Business Days prior to the last day of the
Revolving Loan Availability Period, unless such Letter of Credit expires by its
terms (or is required by subsection (c) below to expire) on an earlier date.
Each Letter of Credit shall provide for payments of drawings in dollars.
(c) Each issuance of any Letter of Credit shall be made on at least
three Domestic Business Days' prior written or telex notice (or such shorter
notice as shall be acceptable to the applicable Issuing Bank) from the Borrower
to the Agent (which shall give prompt notice thereof to each Lender) and the
applicable Issuing Bank specifying the date of issuance, the date on which such
Letter of Credit is to expire (which shall not be later than the earlier of (i)
the date that is five Domestic Business Days prior to the last day of the
Revolving Loan Availability Period, and (ii) subject to extension, 180 days, in
the case of documentary or trade Letters of Credit, and one year, in the case of
standby Letters of Credit, after the date of any such Letter of Credit, or, if
such Letter of Credit provides that the expiry thereof may be accelerated upon
an Event of Default with respect to the Borrower specified in clause (h) or (i)
of Section 6.01, any later date permitted under clause (i) above), the amount of
such Letter of Credit, the name and address of the beneficiary of such Letter of
Credit, whether such Letter of Credit is a documentary or trade Letter of Credit
or a standby Letter of Credit, and such other information as may be necessary or
desirable to complete such Letter of Credit. Each Issuing Bank will give the
Agent prompt notice of the issuance and amount of such Letter of Credit and the
expiration of such Letter of Credit. Each Issuing Bank also will give the Agent
and the Borrower (i) daily notice of the amount available to be drawn under each
outstanding Letter of Credit and (ii) a quarterly summary indicating, on a daily
basis during such quarter, the issuance of any Letter of Credit and the amount
thereof, the expiration of any Letter of Credit and any payment on drafts
presented under Letters of Credit.
(d) Each Issuing Bank that issues a Letter of Credit, by the issuance
of a Letter of Credit and without any further action on the part of such Issuing
Bank or the Lenders in respect thereof, hereby grants to each Lender, and each
Lender hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In
<PAGE>
-50-
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Agent, on behalf of such Issuing Bank,
in accordance with Section 2.02(e), such Lender's Applicable Percentage of each
Letter of Credit Disbursement made by such Issuing Bank and not reimbursed by
the Borrower when due in accordance with subsection (g) of this Section;
provided that the Lenders shall not be obligated to make any such payment with
- --------
respect to any wrongful Letter of Credit Disbursement made as a result of the
gross negligence or wilful misconduct of the applicable Issuing Bank.
(e) Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to subsection (d) above in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever (subject only to the proviso in subsection
(d) above).
(f) During the Revolving Loan Availability Period (and thereafter, so
long as any Letter of Credit remains outstanding), the Borrower shall pay (i) to
the Agent for the account of the Lenders ratably in proportion to their
Revolving Loan Commitments a fee on the amount available to be drawn under each
outstanding Letter of Credit at a rate per annum equal to the applicable Euro-
Dollar Margin from time to time in effect with respect to Revolving Euro-Dollar
Loans (minus 0.25%, in the case of documentary or trade Letters of Credit), and
(ii) to each Issuing Bank for its own account, a fee at the rate per annum
specified in such Issuing Bank's Issuing Bank Agreement on the amount available
to be drawn under each outstanding Letter of Credit issued by such Issuing Bank.
Such fees shall accrue from and including the Effective Date to but excluding
the last day of the Revolving Loan Availability Period (provided that such fees
shall continue to accrue so long as any Letter of Credit remains outstanding).
Accrued fees under this subsection shall be calculated by the Agent as of each
Quarterly Payment Date and as of the Termination Date. The Agent shall make
such calculation and notify the Borrower of the amount so calculated within
three Domestic Business Days after each date as of which such calculation is so
required, and such fees shall be payable by the Borrower upon receipt of such
notice. In addition to the foregoing, the Borrower shall pay directly to each
Issuing Bank, for its own account, such Issuing Bank's customary processing and
documentation fees in connection with the issuance or
<PAGE>
-51-
amendment of or payment on any Letter of Credit, payable within 15 days after
demand therefor by such Issuing Bank.
(g) If an Issuing Bank shall pay any draft presented under a Letter
of Credit, the Borrower shall pay to the Agent, on behalf of such Issuing Bank,
an amount equal to the amount of such draft before 12:00 Noon (New York City
time), on the day on which such Issuing Bank shall have notified the Borrower
that payment of such draft will be made. The Agent will promptly pay any such
amounts received by it to such Issuing Bank. If the Borrower shall fail to pay
any amount required to be paid by it under this subsection when due, such unpaid
amount shall bear interest, for each day from and including the due date to but
excluding the date of payment, at a rate per annum equal to the interest rate
applicable to overdue Base Rate Revolving Loans.
(h) The Borrower's obligation to reimburse Letter of Credit
Disbursements as provided in subsection (g) above shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with
the terms of this Agreement under any and all circumstances whatsoever, and
irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any other Loan Document;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower, any Subsidiary or any other person may at any time have
against the beneficiary under any Letter of Credit, any Issuing Bank, the
Agent or any Lender or any other Person in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or other document which does not comply with the
terms of such Letter of Credit; provided that such payment was not
--------
<PAGE>
-52-
wrongfully made as a result of the gross negligence or wilful misconduct of
the applicable Issuing Bank; and
(v) any other act or omission or delay of any kind or any other
circumstance or event whatsoever, whether or not similar to any of the
foregoing and whether or not foreseeable, that might, but for the
provisions of this subsection (h), constitute a legal or equitable
discharge of the Borrower's obligations hereunder.
(i) It is expressly understood and agreed that, for purposes of
determining whether a wrongful payment under a Letter of Credit resulted from an
Issuing Bank's gross negligence or wilful misconduct, an Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary
and, in making any payment under any Letter of Credit (i) an Issuing Bank's
exclusive reliance on the documents presented to it under such Letter of Credit
as to any and all matters set forth therein, including reliance on the amount of
any draft presented under such Letter of Credit, whether or not the amount due
to the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents presented
under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute wilful misconduct or gross negligence of the applicable
Issuing Bank. It is further understood and agreed that, notwithstanding the
proviso to clause (iv) of subsection (h) above, the Borrower's obligation
hereunder to reimburse Letter of Credit Disbursements will not be excused by the
gross negligence or wilful misconduct of an Issuing Bank to the extent that such
Letter of Credit Disbursement actually discharged a liability of, or otherwise
benefited, or was recovered by, the Borrower; provided that the foregoing shall
--------
not be construed to excuse an Issuing Bank from liability to the Borrower to the
extent of any direct damages suffered by the Borrower that are caused by such
Issuing Bank's gross negligence or wilful misconduct in
<PAGE>
-53-
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof.
(j) Each Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a
Letter of Credit. Each Issuing Bank shall as promptly as possible give
telephonic notification, confirmed by telex or telecopy, to the Agent and the
Borrower of such demand for payment and whether such Issuing Bank has made or
will make a Letter of Credit Disbursement thereunder, provided that the failure
to give such notice shall not relieve the Borrower of its obligation to
reimburse any such Letter of Credit Disbursement in accordance with this
Section. The Agent shall promptly give each Lender notice thereof.
(k) In the event that the Borrower is required pursuant to the terms
of this Agreement or any other Loan Document to provide cash collateral in
respect of the Letter of Credit Exposure, the Borrower shall deposit in an
account with the Security Agent, for the benefit of the Lenders, an amount in
cash equal to the Letter of Credit Exposure (or such lesser amount as shall be
required hereunder or thereunder). Such deposit shall be held by the Security
Agent as collateral for the payment and performance of the Obligations. The
Security Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits in Temporary Cash Investments, which
investments shall be made as directed by the Borrower (unless such investments
shall be contrary to applicable law or regulation or a Default shall have
occurred and be continuing, in which case investments shall be made at the
option and sole but reasonable discretion of the Security Agent), such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall automatically be
applied by the Security Agent to reimburse each Issuing Bank for Letter of
Credit Disbursements and, if the maturity of the Loans has been accelerated, to
satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Domestic Business days after all Events of Default have been cured or
waived. If the Borrower is required to provide an amount of cash collateral
hereunder pursuant to
<PAGE>
-54-
Section 2.08(d), such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower upon demand; provided that, after giving effect to
--------
such return, (i) the sum of the Letter of Credit Exposure plus the aggregate
outstanding principal amount of Revolving Loans would not exceed the lesser of
the aggregate Revolving Loan Commitments or the Borrowing Base and (ii) no
Default shall have occurred and be continuing.
(l) All letters of credit outstanding under the Existing Credit
Agreement as of the Effective Date shall be deemed to have been issued hereunder
on the Effective Date and shall constitute "Letters of Credit" for all purposes
of the Loan Documents.
(m) The Borrower, the Agent and any Lender that is willing to be an
Issuing Bank hereunder may agree that such Lender shall be an Issuing Bank by
the execution and delivery of an agreement substantially in the form of Exhibit
I (an "Issuing Bank Agreement"). The Agent shall notify the Lenders of the
identity of any Issuing Bank appointed pursuant to this subsection (m). The
Borrower also may terminate the status of any Issuing Bank as an Issuing Bank
hereunder at any time by at least three Domestic Business Days' prior notice to
such Issuing Bank and the Agent, and the Agent shall thereupon notify the
Lenders of such termination; provided that such termination shall operate only
--------
to relieve such Issuing Bank of its obligation to issue Letters of Credit
hereunder and shall not affect such Issuing Bank's status as an Issuing Bank or
its rights and obligations hereunder with respect to any Letters of Credit
previously issued by it.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective
--------------
on the date that each of the following conditions shall have been satisfied
(or waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other
<PAGE>
-55-
written confirmation from such party of execution of a counterpart hereof
by such party);
(b) receipt by the Agent for the account of each Lender of a duly
executed Note or Notes, dated on or before the Effective Date complying
with the provisions of Section 2.03;
(c) receipt by the Agent of opinions of each of Riordan & McKinzie,
Richards & O'Neil, L.L.P., Foley, Hoag & Elliot and Ice Miller Donadio &
Ryan, in each case as counsel for the Borrower, substantially in the forms
of Exhibits G-1, G-2, G-3 and G-4 hereto, respectively, and covering such
additional matters relating to the transactions contemplated hereby as the
Required Lenders may reasonably request;
(d) receipt by the Agent of a certificate signed by the Chairman and
Chief Executive Officer and any Vice President of the Borrower, dated the
Effective Date, to the effect set forth in clauses (c) and (d) of Section
3.02;
(e) receipt by the Agent of counterparts of the Guarantee Agreement
duly executed by the parties thereto;
(f) receipt by the Security Agent of counterparts of the Pledge
Agreement, duly executed by the parties thereto, and certificates
representing all outstanding shares of capital stock of each corporate
Subsidiary existing on the Effective Date, accompanied by stock powers
endorsed in blank;
(g) receipt by the Security Agent of counterparts of the Security
Agreement, duly executed by the parties thereto, and a duly completed and
executed Perfection Certificate from the Borrower, substantially in the
form of Exhibit H hereto;
(h) receipt by the Security Agent of copies of each document
(including each Uniform Commercial Code financing statement) required by
law or reasonably requested by the Security Agent to be filed, registered
or recorded in order to create in favor of the Security Agent for the
benefit of the Lenders a valid, legal and perfected security interest in or
lien on the
<PAGE>
-56-
collateral that is the subject of the Security Agreement;
(i) receipt by the Security Agent of the results of a search of the
Uniform Commercial Code filings made with respect to the Borrower and its
Subsidiaries in the States in which are located the chief executive offices
of such persons and the other jurisdictions in which Uniform Commercial
Code filings are to be made pursuant to the preceding paragraph, together
with copies of such financing statements disclosed by such search, and
accompanied by evidence that each lien indicated in any such financing
statement is permitted hereunder or has been released;
(j) receipt by the Security Agent of (i) counterparts of a Mortgage
with respect to each Mortgaged Property, satisfactory in form and substance
to the Security Agent and signed on behalf of the record owner of such
Mortgaged Property, (ii) a policy or policies of title insurance issued by
a nationally recognized title insurance company, insuring the Lien of each
such Mortgage as a valid first Lien on the Mortgaged Property described
therein, free of any other Liens except as permitted by Section 5.17,
together with such endorsements, coinsurance and reinsurance as the
Security Agent or the Required Lenders may reasonably request, (iii) such
surveys, abstracts, appraisals and legal opinions as may be required
pursuant to such Mortgages or as the Security Agent or the Required Lenders
may reasonably request, including FIRREA appraisals to the extent required
by applicable law or regulation; and (iv) with respect to the warehouse
facilities located in the state of Indiana, a policy or policies of flood
insurance issued by a nationally recognized insurance company;
(k) receipt by the Security Agent of an initial Borrowing Base
Certificate as of the Saturday closest to the last day of March, 1997;
(l) receipt by the Security Agent of counterparts of the Trademark
Collateral Agreements, duly executed by the parties thereto;
(m) the Required Lenders shall not have advised the Agent that, in
their judgment, there shall have
<PAGE>
-57-
occurred a material adverse change in the assets, financial condition,
prospects or results or operations of the Borrower and its Subsidiaries,
taken as a whole;
(n) the Borrower shall have made arrangements satisfactory to the
Agent and the Documentation Agent to repay all loans outstanding under the
Existing Credit Agreement, together with accrued and unpaid interest, fees
and other amounts owing thereunder, to terminate all lending commitments
thereunder, and to obtain the release and termination of all Liens securing
obligations thereunder, in each case on the Effective Date, and after
giving effect thereto the only Debt of the Borrower and its Subsidiaries on
the Effective Date will be Loans, Subordinated Debt and other Debt that was
permitted by the Existing Credit Agreement;
(o) receipt by the Agent of all fees and other compensation payable to
the Agent, the Documentation Agent, the Lenders or the Security Agent on or
prior to the Effective Date pursuant to their agreements with the Borrower;
(p) receipt by the Agent of the certificate to be delivered on the
Effective Date pursuant to Section 5.03(b) and satisfaction of the Lenders
with the amount and scope of the Borrower's insurance coverage set forth
therein and the identity of the insurers providing such coverage;
(q) receipt by the Agent of a letter agreement, duly executed by the
Parent Corporation and in form and substance reasonably satisfactory to the
Agent, pursuant to which the Parent Corporation shall agree to observe the
covenants applicable to it set forth in Section 5.04(d); and
(r) receipt by the Agent of all documents it may reasonably request
relating to the existence of the Borrower and its Subsidiaries, the
corporate authority for and the validity of the Loan Documents, and any
other matters relevant hereto, all in form and substance satisfactory to
the Agent;
provided that this Agreement shall not become effective or be binding on any
- --------
party hereto unless all of the foregoing
<PAGE>
-58-
conditions are satisfied not later than May 31, 1997. The Agent shall promptly
notify the Borrower and the Lenders of the Effective Date, and such notice shall
be conclusive and binding on all parties hereto.
SECTION 3.02. Each Credit Event. The obligation of any Lender to
------------------
make a Loan on the occasion of any Borrowing (it being understood that, for
purposes of this Section, a "Borrowing" does not include a change or
continuation of the Type of, or the duration of the Interest Period applicable
to, a previously outstanding Borrowing pursuant to Section 2.04) and of the
Issuing Bank to issue, extend or renew a Letter of Credit is subject to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02 or a notice requesting issuance, extension or renewal of a
Letter of Credit as required by Section 2.13(c), as applicable;
(b) the fact that, immediately after such Borrowing or the issuance,
extension or renewal of such Letter of Credit, the aggregate outstanding
principal amount of the Loans of each Class and the Letter of Credit
Exposure will not exceed the limitations set forth in Sections 2.01 and
2.13(a);
(c) the fact that, immediately after such Borrowing or issuance,
extension or renewal of such Letter of Credit, no Default shall have
occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement and the other Loan Documents shall be true on
and as of the date of such Borrowing or issuance, extension or renewal of
such Letter of Credit (except to the extent such representations and
warranties expressly relate solely to an earlier date).
Each Borrowing hereunder and the issuance, extension or renewal of each Letter
of Credit hereunder shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing or issuance as to the facts specified in
clauses (b), (c) and (d) of this Section.
<PAGE>
-59-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Existence and Power. The Borrower is a limited
--------------------
partnership duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization, and has all powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted or proposed to be conducted.
SECTION 4.02. Corporate and Governmental Autho-
---------------------------------
rization; No Contravention. The execution, delivery and performance by each of
- ---------------------------
the Borrower and its Subsidiaries of this Agreement and the other Loan Documents
to which it is to be a party and the consummation of the Financing Transactions
are within its powers, have been duly authorized by all necessary action on the
part of the Borrower, its partners, the Subsidiaries and their respective
stockholders or partners (as applicable), require no action by or in respect of,
or filing with, any Governmental Authority (other than (i) such as have been
duly taken or made, (ii) filings required to perfect Liens granted under the
Security Documents and (iii) compliance with "bulk sales" laws) and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the partnership agreement, certificate of incorporation or By-
laws (as applicable) of the Borrower or any Subsidiary or of any judgment,
injunction, order or decree or (to the extent that such contravention or default
could result in a Material Adverse Effect) any agreement or other instrument
binding upon the Borrower or any Subsidiary or result in the creation or
imposition of any Lien (other than the Liens of the Security Documents) on any
asset of the Borrower or any of its Subsidiaries, in each case both before and
after giving effect to the Financing Transactions.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
---------------
binding agreement of the Borrower and the other Loan Documents, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of each of the Borrower and the
<PAGE>
-60-
Subsidiaries party thereto, in each case enforceable in accordance with its
terms.
SECTION 4.04. Financial Information; Title to Properties. (a) The
-------------------------------------------
consolidated balance sheet of the Borrower as of February 1, 1997 and the
related consolidated statements of operations, partnership equity and cash flows
for each of the two fiscal years ended February 1, 1997, reported on by Coopers
& Lybrand and set forth in the Descriptive Materials, copies of which have been
delivered to each of the Lenders, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial position of the
Borrower as of such date and the results of its operations and cash flows for
such years.
(b) The unaudited consolidated balance sheet of the Borrower as of
February 1, 1997, and the related unaudited consolidated statements of
operations and cash flows for the 13-week and 26-week periods ended February 1,
1997, set forth in the Descriptive Materials, copies of which have been
delivered to each of the Lenders, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section (except as disclosed
therein), the consolidated financial position of the Borrower as of such date
and the results of its operations for such periods (subject to normal year-end
adjustments).
(c) The unaudited pro forma consolidated statement of income for the
fiscal year ended February 1, 1997, set forth in the Descriptive Materials, has
been derived from the historical financial statements for such period referred
to in subsection (a) of this Section adjusted to give effect to the Transactions
on the basis described therein. Such pro forma consolidated statement of income
presents fairly, on a pro forma basis, the Borrower's consolidated income for
such period, assuming that the adjustments specified therein had occurred as
described therein.
(d) Since February 1, 1997, there has been no material adverse change
in the assets, financial condition or results of operations of the Borrower and
its Consolidated Subsidiaries, considered as a whole.
<PAGE>
-61-
(e) Each of the Borrower and the Subsidiaries has good and marketable
title to, or valid leasehold interests in, all its material properties and
assets, except for minor defects in title that do not interfere with its ability
to conduct its business as currently conducted or proposed to be conducted or to
utilize such properties and assets for their intended purposes.
SECTION 4.05. Litigation. There is no injunction, stay, decree or
-----------
order of any Governmental Authority or any action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against or affecting,
the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision, which in any such case could have a Material Adverse
Effect or which in any manner draws into question the validity of this Agreement
or the other Loan Documents.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
----------------------
has, in all material respects, fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect to each
Plan and is in compliance in all material respects with the presently applicable
provisions of ERISA and the Internal Revenue Code with respect to each Plan. No
member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code in respect of any Plan,
(ii) failed to make any contribution or payment to any Plan, or made any
amendment to any Plan, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any material liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.07. Taxes. The Borrower and its Subsidiaries have filed or
------
caused to be filed all United States Federal income tax returns and all other
material tax returns which are required to be filed by them and have paid or
caused to be paid all taxes shown to be due on such returns or pursuant to any
assessment received by the Borrower or any Subsidiary, except where the same may
be contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of
taxes or other govern-
<PAGE>
-62-
mental charges are, in the opinion of the Borrower, adequate.
SECTION 4.08. Parent Corporation. As of the Effective Date, the
-------------------
Borrower is, directly or indirectly, wholly owned by the Parent Corporation, the
Parent Corporation does not have any subsidiaries, other than the Borrower and
the Subsidiaries and subsidiaries resulting from transfers to the Parent
Corporation of capital stock of corporations holding partnership interests in
the Borrower, and neither the Parent Corporation nor any of its subsidiaries
described above have any material assets (other than partnership interests in
the Borrower and assets of the Borrower and the Subsidiaries) or liabilities
(other than (i) liabilities fully indemnified by The Limited, (ii) liabilities
that also constituted liabilities of the Borrower prior to the Conversion and
(iii) liabilities of the Borrower and the Subsidiaries).
SECTION 4.10. Subsidiaries. Each of the Borrower's Subsidiaries is a
-------------
corporation, a general partnership or a limited partnership duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, and has all corporate or partnership powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. As of the Effective Date, after giving effect
to the Acquisition, the only Subsidiaries of the Borrower shall be the
Subsidiaries identified on Schedule 4.10, each of which shall be a Permitted
Subsidiary.
SECTION 4.11. Not an Investment Company. The Borrower is not an
--------------------------
"investment company", nor is it controlled by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.12. Compliance with Laws. Neither the Borrower nor any of
---------------------
the Subsidiaries is in violation of any law, rule or regulation, or in default
with respect to any judgment, writ, injunction or decree applicable to it of any
Governmental Authority, that (individually or in the aggregate) could result in
a Material Adverse Effect.
SECTION 4.13. Agreements. (a) Except as disclosed in the
-----------
Descriptive Materials, neither the Borrower nor any of the Subsidiaries is a
party to any agreement or
<PAGE>
-63-
instrument or subject to any partnership or corporate restriction that has
resulted or could result in a Material Adverse Effect. Neither the Borrower nor
any of the Subsidiaries is a party to any agreement or instrument or subject to
any restriction (other than restrictions on the payment of dividends or
partnership distributions imposed by law) that restricts or impairs (i) the
ability of the Borrower and its Subsidiaries to grant to the Security Agent
Liens on any of their assets to secure the Obligations or (ii) the ability of
any Subsidiary to pay dividends on its capital stock or distributions to its
partners, as applicable.
(b) Neither the Borrower nor any of the Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or instrument
evidencing Debt, or any other agreement or instrument to which it is a party or
by which it or any of its properties or assets are or may be bound, where such
default could result in a Material Adverse Effect.
SECTION 4.14. Federal Reserve Regulations. Neither the Borrower nor
----------------------------
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
SECTION 4.15. Disclosure. All information (including the Descriptive
-----------
Materials but excluding projected financial information) furnished in writing by
or on behalf of the Borrower or any Subsidiary to the Agent or any Lender for
purposes of or in connection with this Agreement or any transaction contemplated
hereby was true and accurate in all material respects or based on reasonable
estimates on the date as of which such information was stated or certified. The
Borrower has disclosed to the Lenders in writing any and all facts (other than
prevailing economic conditions affecting similarly situated businesses
generally) known to any officer of the Borrower which materially and adversely
affect or may materially and adversely affect (to the extent the Borrower can
now reasonably foresee) the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a
whole. All projected financial information which has been furnished by or on
behalf of the Borrower or any Subsidiary to the Agent or any Lender was, at the
time so furnished, believed by the Borrower to have been prepared in a
reasonable manner
<PAGE>
-64-
and based on reasonable assumptions with respect to the Borrower's business;
provided that no representation is made by the Borrower that the future results
- --------
of the Borrower will equal those set forth in such projected financial
information.
SECTION 4.16. Governmental Approvals. As of the Effective Date, all
-----------------------
consents and approvals of, and filings and registrations with, and all other
actions in respect of, all Governmental Authorities required in order to
consummate the Financing Transactions shall have been obtained, given, filed or
taken and shall be in full force and effect, other than filings required in
order to perfect Liens granted under the Security Documents.
SECTION 4.17. Security Interests. (a) The security interests
-------------------
created in favor of the Security Agent under the Pledge Agreement will at all
times after the execution and delivery of the Pledge Agreement constitute valid,
first-priority, perfected security interests in the Pledged Securities (as
defined therein), and such Pledged Securities will be subject to no Liens (other
than unperfected Liens imposed by law) or security interests of any other
Person. No filings or recordings are or will be required in order to perfect
the security interests in the Pledged Securities created under the Pledge
Agreement.
(b) Upon the completion of the filings and recordations in the filing
and recording offices specified in the Perfection Certificate referred to in
Section 3.01, the security interests created in favor of the Security Agent for
the benefit of the Lenders under the Security Documents will constitute valid,
perfected security interests in the collateral subject thereto, subject only to
Liens permitted by the Loan Documents.
SECTION 4.18. Employment and Management Agreements. Except as
--------------------------------------
disclosed in Schedule 4.18, as of the Effective Date (after giving effect to the
Transactions) there are no (a) employment agreements covering management
employees of the Borrower, (b) agreements for management or consulting services
to which the Borrower is a party or by which it is bound, or (c) collective
bargaining agreements or other labor agreements covering any of the employees of
the Borrower.
<PAGE>
-65-
SECTION 4.19. Capitalization. As of the Effective Date, the only
---------------
general partner in the Borrower is VGP, which is a wholly-owned subsidiary of
the Parent Corporation. As of the Effective Date, there are no outstanding
subscriptions, options, warrants, calls, rights (including preemptive rights) or
other agreements or commitments of any nature relating to any partnership
interests in the Borrower, except as provided for in the Partnership Agreement
and except with respect to management plans and arrangements and the Convertible
Subordinated Debt.
SECTION 4.20. Environmental Matters. Except as disclosed in the
----------------------
environmental audit reports delivered to the Agent prior to the date of
execution of this Agreement, each of the Borrower and the Subsidiaries has
complied with all Environmental and Safety Laws, except for any noncompliance
that, individually or in the aggregate, could not reasonably be anticipated to
result in a Material Adverse Effect. None of the Borrower and the Subsidiaries
has received notice of any failure so to comply which alone or together with any
other such failure could result in a Material Adverse Effect. Except as
disclosed in the environmental audit reports delivered to the Agent prior to the
date of execution of this Agreement, the facilities of the Borrower and the
Subsidiaries do not treat, store or dispose of any hazardous wastes, hazardous
substances, hazardous materials, toxic substances or toxic pollutants, as those
terms are used in any Environmental and Safety Laws, in violation thereof where
such violation could result, individually or together with other violations, in
a Material Adverse Effect.
<PAGE>
-66-
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Loan Document remains unpaid or any
Letter of Credit remains outstanding:
SECTION 5.01. Information. The Borrower will deliver to each of the
------------
Lenders:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of the Borrower, consolidated and consolidating balance
sheets of the Borrower and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated and consolidating
statements of income and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, all
reported on by Coopers & Lybrand or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each fiscal year of the Borrower,
consolidated balance sheets of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income and cash flows for such quarter and for the portion of
the Borrower's fiscal year ended at the end of such quarter, setting forth
in each case in comparative form the figures for the corresponding quarter
and the corresponding portion of the Borrower's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by
the chief financial officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail a list of Investments in order to
establish whether the Borrower was in compliance with Section 5.16, (ii)
setting forth in reasonable detail the calculations required to establish
whether the Borrower
<PAGE>
-67-
was in compliance with the requirements of Sections 5.21, 5.22 and 5.23 on
the date of such financial statements, (iii) stating whether any Default
exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto, (iv) stating whether,
since the date of the most recent financial statements previously delivered
pursuant to this Section, there has been any material change in the
generally accepted accounting principles applied in the preparation of such
statements and, if so, describing such change, (v) identifying any
Reinvestment Events that occurred during the previous six-month period and
the status of the reinvestment of the Net Cash Proceeds thereof, (vi) as
long as the Borrower is a partnership, setting forth the Tax Distribution
Amount and a reasonably detailed calculation thereof, and (vii) setting
forth the Pricing Ratio and a reasonably detailed calculation thereof;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
stating whether anything has come to their attention to cause them to
believe that any Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to subclauses (ii), (vi) and
(vii) of clause (c) above;
(e) as soon as available and in any event within 20 days after the
Saturday closest to the last day of each calendar month, a summary
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of such Saturday and the related summary consolidated
statement of income for the fiscal month then ended and for the portion of
the Borrower's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal month and the
corresponding portion of the Borrower's previous fiscal year, prepared in
accordance
<PAGE>
-68-
with generally accepted accounting principles (subject to normal year-end
adjustments);
(f) within 20 days after the Saturday closest to the last day of each
calendar month (commencing with the month ending April 30, 1997, a
Borrowing Base Certificate as of such Saturday certified by the chief
financial officer or chief accounting officer of the Borrower (which
certificate the Agent and the Security Agent shall have the right to audit
at the expense of the Borrower; provided that not more than two such audits
--------
may be conducted at the Borrower's expense during any fiscal year of the
Borrower unless an Event of Default has occurred and is continuing);
(g) prompt notice of any default or alleged default under or breach or
alleged breach of the Trademark Agreements or Credit Card Agreements;
(h) prompt notice of each Prepayment Event or Reinvestment Event,
including a reasonably detailed calculation of the Net Cash Proceeds
therefrom;
(i) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate
of the chief financial officer or the chief accounting officer of the
Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(j) promptly upon the delivery or mailing thereof to the shareholders
of the Parent Corporation, copies of all reports, financial information
(including budgets or projections), proxy statements and other information
so delivered or mailed;
(k) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Borrower, the Parent Corporation or Finance
Corp. shall have filed with the Securities and Exchange Commission;
(l) if and when any member of the ERISA Group (i) becomes aware of or
gives or is required to give
<PAGE>
-69-
notice to the PBGC of any Reportable Event with respect to any Plan which
might constitute grounds for or result in a termination of such Plan by the
PBGC under Title IV of ERISA, or knows that the plan administrator of any
Plan has become aware of or has given or is required to give notice of any
Reportable Event, a copy of the notice of such Reportable Event given or
required to be given to the PBGC if any such notice is required; (ii)
receives notice of complete or partial withdrawal liability under Title IV
of ERISA under circumstances that would result in a material amount of
withdrawal liability, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee
to administer any Plan, a copy of such notice; or (iv) within 10 days after
the due date for filing with the PBGC pursuant to Section 412(n) of the
Internal Revenue Code a notice of failure to make a required installment or
other payment with respect to a Plan, a statement of the chief financial
officer or the chief accounting officer of the Borrower setting forth
details as to such failure and the action that the Borrower proposes to
take with respect thereto, together with a copy of any such notice given to
the PBGC;
(m) promptly upon delivery thereof to the holders of Subordinated
Debt, copies of any and all reports, notices, financial information
(including any budgets or projections) and other information delivered to
such holders, to the extent not duplicative of information previously
delivered to the Lenders; and
(n) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Agent, at the request of any Lender, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and
-----------------------
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities, including,
without limitation, tax liabilities, except in connection with a good faith
contest with the applicable obligee, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted
<PAGE>
-70-
accounting principles, appropriate reserves for the accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance; Casualty and
------------------------------------------------
Condemnation. (a) The Borrower will keep, and will cause each Subsidiary to
- -------------
keep, all property useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted.
(b) The Borrower will maintain, and will cause each Subsidiary to
maintain, (i) physical damage insurance on all real and personal property on an
all risks basis (including the perils of flood and quake), covering the repair
and replacement cost of all such property and consequential loss coverage for
business interruption and extra expense (such consequential loss coverage to be
in a reasonable amount in relation to the Borrower's gross revenues), (ii)
public liability insurance (including products/completed operations liability
coverage) in such amounts (on a per occurrence basis) as is customary with
prudent companies similarly situated in the same or similar businesses, and
(iii) such other insurance coverage in such amounts and with respect to such
risks as shall be required by the terms of any other Loan Document or as the
Required Lenders may reasonably request. All such insurance shall be provided
by financially sound and reputable insurers or such other insurers as the
Required Lenders may approve in writing. The Borrower will deliver to the
Lenders (i) on the Effective Date, a certificate dated such date showing the
amount of coverage as of such date, (ii) upon request of any Lender through the
Agent from time to time full information as to the insurance carried, (iii)
within five days of receipt of notice from any insurer a copy of any notice of
cancelation or material change in coverage from that existing on the Effective
Date and (iv) forthwith, notice of any cancelation or nonrenewal of coverage by
the Borrower.
(c) The Borrower will furnish to the Agent and the Lenders prompt
written notice of any casualty or other insured damage to any portion of any
Mortgaged Property or the commencement of any action or proceeding for the
taking of any Mortgaged Property or any part thereof or interest therein under
power of eminent domain or by condemnation or similar proceeding. If any such
event results in Net Cash Proceeds (whether in the form of insurance proceeds,
condemnation award or otherwise), the Security Agent is
<PAGE>
-71-
authorized to collect such Net Cash Proceeds and, if received by the Borrower or
any Subsidiary, such Net Cash Proceeds shall be paid over to the Security Agent;
provided that if the aggregate Net Cash Proceeds in respect of such event are
- --------
less than $5,000,000, such Net Cash Proceeds shall be paid over to the Borrower
unless a Default has occurred and is continuing. All such Net Cash Proceeds
retained by or paid over to the Security Agent shall be held by the Security
Agent and released from time to time to pay the costs of repairing, restoring or
replacing the affected property in accordance with the terms of the applicable
Mortgage, subject to the provisions of the applicable Mortgage regarding
application of such Net Cash Proceeds during a Default. If any Net Cash Proceeds
retained by or paid over to the Security Agent as provided above continue to be
held by the Security Agent on the date that is two years after the collection of
such Net Cash Proceeds, then such Net Cash Proceeds shall be applied to prepay
Term Loans as provided in Section 2.08(e).
SECTION 5.04. Conduct of Business and Maintenance of Existence. (a)
-------------------------------------------------
The Borrower will continue, and will cause each Subsidiary to continue, to
engage in business of the same general type as conducted by the Borrower and its
Subsidiaries prior to the Effective Date, and will preserve, renew and keep in
full force and effect, and will cause each Subsidiary to preserve, renew and
keep in full force and effect, their respective existences and their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business.
(b) All outstanding shares of Finance Corp.'s capital stock shall be
owned directly by the Borrower, Finance Corp.'s only business or activity shall
be the issuance of the Subordinated Debt and activities incidental thereto and
Finance Corp. shall not own or acquire any assets.
(c) The only business or activity of a Permitted Subsidiary (other
than Finance Corp.) shall be (i) creative design activities associated with the
preparation of catalogues in connection with the Borrower's business, (ii) the
production and distribution of such catalogues, (iii) other activities
incidental to the Borrower's business, (iv) the leasing of property and
employment of management and employees for purposes of the foregoing activities,
(v) other activities incidental to such
<PAGE>
-72-
Permitted Subsidiary's business and (vi) ownership of interests in other
Permitted Subsidiaries. Without limiting the generality of the foregoing,
Permitted Subsidiaries (including Finance Corp.) shall not own or acquire any
inventory or collect or hold any revenues or other proceeds generated from the
sale of inventory, all of which activities shall be conducted by the Borrower.
The Borrower will not permit any Permitted Subsidiary to incur any Debt (other
than pursuant to the Guarantee Agreement, the Security Documents and a
Subordinated Guarantee Agreement and, in the case of Finance Corp., the
Subordinated Debt) or other liability (other than liabilities for franchise
taxes and similar liabilities incidental to its existence).
(d) The only business or activity of the Parent Corporation and its
subsidiaries (other than the Borrower and its Subsidiaries) shall be the
ownership of the Borrower and activities incidental thereto, which may include
the establishment and administration of Parent Corporation Stock Plans. Without
limiting the generality of the foregoing, neither the Parent Corporation nor any
of its Subsidiaries (other than the Borrower and its Subsidiaries) will (i) have
any subsidiaries, other than the Borrower and its Subsidiaries and, in the case
of the Parent Corporation, wholly owned subsidiaries through which it indirectly
holds partnership interests in the Borrower, or (ii) have any material assets
(other than partnership interests in the Borrower) or liabilities (other than
(A) liabilities fully indemnified by The Limited, (B) liabilities that also
constituted liabilities of the Borrower prior to the Conversion, (C) liabilities
of the Borrower and its Subsidiaries and (D) liabilities arising by operation of
law or otherwise incidental to its existence).
SECTION 5.05. Compliance with Laws. The Borrower will comply, and
---------------------
cause each Subsidiary to comply, with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without
limitation, Environmental and Safety Laws and ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings or where the failure to
comply, either alone or combined with other failures to comply, could not have a
Material Adverse Effect.
SECTION 5.06. Inspection of Property, Books and Records. The
------------------------------------------
Borrower will keep, and will cause each
<PAGE>
-73-
Subsidiary to keep, proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities; and will permit, and will cause each Subsidiary to
permit, representatives of any Lender at such Lender's expense to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often as may
reasonably be desired; provided that (a) reasonable advance notice shall be
--------
given to the Borrower of any such visit or inspection of properties and (b) the
Borrower shall be afforded an opportunity to participate in any such discussions
with independent public accountants.
SECTION 5.07. Fiscal Year. The Borrower will cause its fiscal year
------------
to end on the Saturday closest to January 31 in each year.
SECTION 5.08. Further Assurances. The Borrower will execute any and
-------------------
all further documents, financing statements, agreements and instruments, and
take all further action, which may be required under applicable law, or which
the Required Lenders or the Agent or Security Agent may reasonably request, in
order to effectuate the transactions contemplated by the Loan Documents and in
order to grant, preserve, protect and perfect the validity and first priority of
the security interests created or intended to be created by the Security
Documents. In addition, (a) the Borrower will deliver prompt written notice to
the Lenders of each Permitted Acquisition describing the assets and properties
acquired and the Borrower will, at the Borrower's cost and expense, promptly
secure the Obligations by pledging or creating, or causing to be pledged or
created, first priority (subject to Liens incurred prior to the applicable
Permitted Acquisition) perfected security interests with respect to such assets
and properties as the Agent or the Required Lenders shall reasonably designate,
and (b) if the Borrower shall form or acquire any additional Subsidiary, the
Borrower will, at the Borrower's expense, cause such Subsidiary to become a
party to the Guarantee Agreement and the Security Agreement and pledge (or cause
to be pledged) the capital stock of such Subsidiary under the Pledge Agreement.
Such additional security interests and Liens will be created under security
agreements, mortgages,
<PAGE>
-74-
deeds of trust and other instruments and documents in form and substance
reasonably satisfactory to the Required Lenders, and the Borrower shall deliver
or cause to be delivered to the Lenders all such instruments and documents
(including legal opinions, title insurance policies and lien searches) as the
Required Lenders shall reasonably request to evidence compliance with this
Section 5.08. The Borrower agrees to provide such evidence as the Required
Lenders shall reasonably request as to the perfection and (subject to Liens
incurred prior to the applicable Permitted Acquisition) first priority status of
each such security interest and Lien.
SECTION 5.09. Subsidiaries; Partnerships. The Borrower will not have
---------------------------
any Subsidiaries other than (i) Wholly Owned Consolidated Subsidiaries acquired
pursuant to Permitted Acquisitions and liquidated or merged into the Borrower
within 90 days after the date of acquisition and (ii) Permitted Subsidiaries.
The Borrower will not, and will not permit any of its Subsidiaries to, enter
into any partnership (other than a partnership that is a Permitted Subsidiary)
or joint venture.
SECTION 5.10. Amendment of Certain Documents. The Borrower will not
-------------------------------
permit any amendment or modification to be made to, or any waiver of its rights
or the rights of any Subsidiary under, any Transaction Document or Subordinated
Debt Document, other than (a) amendments, modifications and waivers with respect
to the Credit Card Agreements that are not, individually or in the aggregate,
materially adverse to the interests of the Lenders, (b) amendments,
modifications and waivers with respect to the Trademark Agreement that are not,
individually or in the aggregate, adverse to the interests of the Borrower or
the Lenders, (c) amendments, modifications and waivers with respect to the
Subordinated Debt Documents limited to (i) immaterial changes necessary to
comply with the Trust Indenture Act of 1939, as amended, in connection with
registration under the Securities Act of 1933 and (ii) other changes that would
not result in the Subordinated Debt governed by such Subordinated Debt Documents
having terms and conditions that would not be permitted terms and conditions for
Subordinated Debt incurred to refinance the Convertible Subordinated Debt or the
Subordinated Notes (as the case may be), as described in the proviso to clause
(ii) of Section 5.11(a), and (d) amendments to the Partnership Agreement that
will not have the effect of increasing the
<PAGE>
-75-
amount of Tax Advances or Tax Distributions and that are not, individually or in
the aggregate, adverse to the interests of the Borrower or the Lenders; provided
--------
that any such amendment, modification or waiver permitted hereunder shall be
made only after prior notice to the Lenders, and copies thereof shall be
delivered to the Lenders.
SECTION 5.11. Debt; Preferred Stock; Rate Protection Agreements. (a)
--------------------------------------------------
The Borrower will not, nor will it permit any of its Subsidiaries to, incur or
at any time be liable with respect to any Debt, except:
(i) Debt outstanding under this Agreement and the other Loan
Documents;
(ii) unsecured Subordinated Debt in an aggregate principal amount not
exceeding $125,000,000 (in respect of the Subordinated Notes or any
permitted refinancing thereof) and $20,000,000 (in respect or the
Convertible Subordinated Debt or any permitted refinancing thereof) at any
time outstanding; provided that any Subordinated Debt incurred to refinance
--------
the Subordinated Notes or the Convertible Subordinated Debt shall have
terms and conditions no less favorable to the Borrower and the Lenders than
the Subordinated Notes or the Convertible Subordinated Debt, as the case
may be, and, without limiting the generality of the foregoing, shall (A)
not require any payment of principal earlier than the original scheduled
maturity date of the Subordinated Notes or the Convertible Subordinated
Debt, as the case may be (except pursuant to mandatory repurchase
provisions that are the same as, or more favorable to the Borrower than,
those applicable to the Subordinated Notes or the Convertible Subordinated
Debt, as the case may be), (B) bear interest at a fixed rate that is equal
to or less than the rate of interest borne by the Subordinated Notes or the
Convertible Subordinated Debt, as the case may be, and (C) have terms of
subordination, covenants, events of default, mandatory offers to repurchase
and other material terms that are the same as, or more favorable to the
Borrower and the Lenders than, those applicable to the Subordinated Notes
or the Convertible Subordinated Debt, as the case may be; provided further
-------- -------
that any Subordinated Debt to be incurred after the Effective Date shall
not be incurred without reasonable prior notice to the Lenders and prior
delivery to the Lenders of copies of the
<PAGE>
-76-
Subordinated Debt Documents to be executed and delivered in connection
therewith;
(iii) Capital Financing Debt in an aggregate principal amount not
exceeding (A) $10,000,000 at any time outstanding prior to the end of the
fiscal year ending on the Saturday closest to January 31, 1998, and (B)
$30,000,000 at any time outstanding thereafter;
(iv) unsecured Debt for borrowed money issued solely for cash
consideration; provided that the incurrence of such Debt shall constitute a
--------
Debt Prepayment Event and (A) all the proceeds of such Debt shall be
applied forthwith to the prepayment of Term Loans or, after the Term Loans
are fully repaid, the reduction of Revolving Loan Commitments and (B)
notwithstanding any contrary provision in this Agreement, any prepayment of
Term Loans of either Class required by clause (A) above shall be applied to
reduce subsequent scheduled repayments thereof pursuant to Section 2.08(a)
in reverse chronological order;
(v) Debt arising under the Credit Card Agreements, to the extent that
payment obligations thereunder are deemed to constitute Debt; provided that
--------
the foregoing shall not be construed to permit the sale of accounts
receivable pursuant to the Credit Card Agreements with recourse to the
Borrower or otherwise on terms and conditions (other than price) materially
less favorable to the Borrower than those specified in the Credit Card
Agreements as in effect on the Effective Date;
(vi) other unsecured Debt in an aggregate principal amount not
exceeding $5,000,000 at any time outstanding;
(vii) Debt in respect of the financing of insurance premiums for
insurance obtained in the ordinary course of business; provided that the
--------
amount of such Debt relating to any policy of insurance shall not at any
time exceed the amount that the Borrower or a Subsidiary would be entitled
to receive as a refund of insurance premium if such insurance policy were
to be canceled at such time; and
(viii) unsecured Debt of any Wholly Owned Consolidated Subsidiary
owing to the Borrower in respect of an Investment made by the Borrower in
<PAGE>
-77-
such Subsidiary in compliance with Section 5.16;
provided that the Borrower shall not permit any Subsidiary to incur or become
- --------
liable for any Debt, whether or not permitted above, other than (1) Subordinated
Debt of Finance Corp. permitted under clause (ii) above, (2) Debt of a Wholly
Owned Consolidated Subsidiary acquired pursuant to a Permitted Acquisition that
is outstanding at the time of such acquisition to the extent permitted under
clause (vi) above, (3) Debt arising under the Guarantee Agreement or any
Security Document to which such Subsidiary is a party, (4) Subordinated Debt
arising under a Subordinated Guarantee Agreement to which such Subsidiary is a
party, if such Subsidiary is required to enter into such Subordinated Guarantee
Agreement by the terms of the Subordinated Debt Documents and if such Subsidiary
also Guarantees the Obligations pursuant to the Guarantee Agreement, and (5)
Debt permitted under clause (vii) or (viii) above.
(b) The Borrower will not, nor will it permit any of its Subsidiaries
to, issue any additional capital stock or partnership interests other than, in
the case of the Borrower, additional partnership interests issued in accordance
with the Partnership Agreement.
(c) The Borrower will from time to time enter into, and maintain in
effect, such Rate Protection Agreements as shall be necessary so that at all
times at least 45% of its long-term Debt (determined on a consolidated basis in
accordance with generally accepted accounting principles) consists of Debt that
bears a fixed rate of interest and Debt that is hedged pursuant to Rate
Protection Agreements to effectively bear interest at a fixed rate or to cap the
rate of interest thereon.
SECTION 5.12. Restricted Payments. The Borrower will not, nor will
--------------------
it permit any of its Subsidiaries to, declare or make or agree to make, directly
or indirectly, any Restricted Payment, except (a) the Borrower may pay interest
on the Subordinated Debt as and when due unless prohibited by the terms of
subordination applicable thereto; (b) the Borrower may refinance Subordinated
Debt with the proceeds of, or exchange Subordinated Debt for, Subordinated Debt
permitted under clause (ii) of Section 5.11(a) if no Default has occurred and is
continuing or would result therefrom; (c) the Borrower may make Tax Advances and
Tax
<PAGE>
-78-
Distributions if (i) no Default described in clause (a) of Section 6.01 has
occurred and is continuing, (ii) the Borrower is a partnership at the time such
Tax Advance or Tax Distribution is made and (iii) the aggregate cumulative
amount of Tax Advances and Tax Distributions does not exceed the aggregate
cumulative Tax Distribution Amounts for periods completed since the Effective
Date; (d) the Borrower may make Restricted Payments to VGP, VLP or the Parent
Corporation as reimbursement of out-of-pocket expenses actually incurred by such
Affiliates to third parties (not including other Affiliates or employees of
Affiliates) in connection with their respective existences, the administration
of the Borrower and the Subsidiaries and activities incidental thereto, provided
that aggregate Restricted Payments pursuant to this clause (d) shall not exceed
$250,000 during any fiscal year of the Borrower; (e) the Borrower may make
Restricted Payments in order to redeem, repurchase or otherwise reacquire equity
interests in the Parent Corporation (including Restricted Payments to any
partner or shareholder in the Borrower in order to permit such partner or
shareholder (either directly or indirectly through additional payments or
distributions to its parent entities) to redeem, repurchase or otherwise
reacquire equity interests in the Parent Corporation from members of the
Borrower's management, if (i) no Default has occurred and is continuing and (ii)
after giving effect to any such Restricted Payment, the aggregate cumulative
amount of Restricted Payments made pursuant to this clause (e) shall not exceed
the sum of $2,000,000 plus the amount of Net Cash Proceeds received by the
Borrower on or after the Effective Date and prior to making such Restricted
Payment from capital contributions attributable to the issuance by the Parent
Corporation of additional equity securities to members of management of the
Borrower; provided that Management Notes may be forgiven or returned without
--------
regard to the limitation in clause (e)(ii) above and the forgiveness or return
thereof shall not be treated as Restricted Payments for purposes of determining
compliance with such clause (e)(ii); (f) if an Equity Prepayment Event occurs
with respect to which the Equity Prepayment Percentage is greater than 0.0%, the
Borrower may purchase, redeem, prepay or acquire Subordinated Debt if (i) no
Default has occurred and is continuing, (ii) any Restricted Payments made
pursuant to this clause (f) shall be made within the 90-day period provided for
in Section 2.08(e) following delivery by the Borrower to the Agent of a notice
in accordance with Section 2.08(e) electing to make such
<PAGE>
-79-
Restricted Payments in lieu of prepaying Term Loans as a result of an Equity
Prepayment Event, (iii) the aggregate amount of Restricted Payments made
pursuant to this clause (f) during any 90-day period referred to above shall not
exceed the Subordinated Debt Prepayment Amount specified in the applicable
notice and (iv) the aggregate principal amount of Subordinated Debt permitted by
clause (ii) of Section 5.11 (a) shall be permanently reduced by the aggregate
principal amount of Subordinated Debt purchased, redeemed, prepaid or acquired
pursuant to this clause (f); (g) if an Equity Prepayment Event occurs with
respect to which the Equity Prepayment Percentage is 0.0%, the Borrower may
purchase, redeem, prepay or acquire Subordinated Debt provided that (i) no
Default has occurred and is continuing, (ii) within two Domestic Business Days
after each Restricted Payment pursuant to this clause (g) the Borrower shall
make an optional prepayment of Term Loans in accordance with Section 2.09 in an
aggregate principal amount equal to the amount of such Restricted Payment and
notify the Agent that such optional prepayment is being made in order to permit
Restricted Payments pursuant to this clause (g) and (iii) the sum of the
aggregate Restricted Payments made pursuant to this clause (g) plus the
aggregate principal amount of Term Loans required to be prepaid as a result of
the foregoing clause (ii) of this clause (g) shall not exceed the excess of (A)
the Net Cash Proceeds from all Equity Prepayment Events after the Effective Date
with respect to which the Equity Prepayment Percentage was 0.0% over (B) the
aggregate amount of cash consideration paid by the Borrower in connection with
Permitted Acquisitions in reliance upon Net Cash Proceeds referred to in clause
(A); (h) the Borrower may make matching contributions on behalf of its
qualifying employees to a Parent Corporation Stock Plan pursuant to the terms
thereof; and (i) the Borrower may make cash payments to the Parent Corporation
for the purpose of the repurchase of shares of its common stock in the open
market or otherwise, but only to the extent necessary to permit the repurchase
of a number of shares equal to the number of shares issued pursuant to a Parent
Corporation Stock Plan, provided that (1) no Default has occurred and is
--------
continuing at the time of, or would result from, such cash payment; (2) the
amount of such cash payments during any fiscal year of the Borrower may not
exceed $3,000,000; and (3) the sum of all cash payments made under this clause
(i) from and after the Effective Date shall not exceed $10,000,000.
<PAGE>
-80-
SECTION 5.13. Mergers, Consolidations, Acquisitions and Sales of
---------------------------------------------------
Assets. (a) The Borrower will not, nor will it permit any of its Subsidiaries
- -------
to, merge into or consolidate with any other Person, or permit any other Person
to merge into or consolidate with it, or purchase or otherwise acquire (in one
transaction or a series of related transactions) any material assets, except
that (i) the foregoing shall not prohibit the consummation of the Acquisition,
(ii) the foregoing shall not prohibit the acquisition of assets in the ordinary
course of business (including Capital Expenditures permitted by Section 5.24),
(iii) the foregoing shall not prohibit Permitted Acquisitions, subject to 30
days' prior written notice to the Lenders of such Permitted Acquisition
describing the material terms of such Acquisition and delivery to the Lenders
prior to consummation of such Permitted Acquisition of a certificate of the
chief financial officer or the chief accounting officer of the Borrower, setting
forth calculations establishing to the reasonable satisfaction of the Agent that
the Borrower will be in compliance with Section 5.23 upon giving effect to such
Permitted Acquisition, (iv) the foregoing shall not prohibit a Conversion in
accordance with Article IX, (v) if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing any
Wholly Owned Consolidated Subsidiary (other than Finance Corp.) may merge or
liquidate into the Borrower in a transaction in which the Borrower is the
survivor and (vi) the foregoing shall not prohibit capital contributions to the
Borrower made in cash or Investments by the Borrower in Subsidiaries permitted
under Section 5.16; provided that the acquisition of assets by Subsidiaries
--------
shall be subject to the further restrictions set forth in Section 5.04.
(b) The Borrower will not, nor will it permit any of its Subsidiaries
to, sell, assign, transfer or otherwise dispose of any asset, including any
stock, without the prior written consent of the Required Lenders to such sale,
assignment, transfer or disposition and the terms thereof; provided, however,
-------- -------
that the foregoing shall not prohibit the sale of (i) inventory in the ordinary
course of business, (ii) used or surplus equipment in the ordinary course of
business, (iii) credit card receivables pursuant to the Credit Card Agreements,
and (iv) other tangible personal property and real property not exceeding
$3,000,000 in fair market value in any fiscal year of the Borrower; provided
--------
<PAGE>
-81-
further, however, that such sales shall be made for fair market value and solely
- ------- -------
for cash consideration.
SECTION 5.14. Transactions with Affiliates. The Borrower will not,
-----------------------------
nor will it permit any of its Subsidiaries to, directly or indirectly, (a) make
any Investment in an Affiliate, (b) sell, lease or otherwise transfer any assets
to or perform services for an Affiliate, (c) purchase, lease or acquire assets
or services from an Affiliate, or (d) enter into any other transaction directly
or indirectly with or for the benefit of an Affiliate (including, without
limitation, Guarantees and assumptions of obligations of an Affiliate);
provided that (i) the Borrower or any of its Subsidiaries may enter into any
- --------
such transaction with an Affiliate that does not involve the payment of
financial or management advisory fees or similar consideration to an Affiliate
if the monetary or business consideration arising therefrom would not be less
advantageous to the Borrower or such Subsidiary than the monetary or business
consideration which it would obtain in a comparable arm's length transaction
with a Person not an Affiliate, (ii) the foregoing shall not prohibit the grant
of warrants or options to acquire equity interests in the Parent Corporation
pursuant to management incentive arrangements, (iii) the foregoing shall not
prohibit the Restricted Payments permitted under Section 5.12 and (iv) the
foregoing shall not prohibit the Transactions or the execution, delivery and
performance by the Borrower of a stockholders agreement and registration rights
agreement substantially in the respective forms attached to the Partnership
Agreement and (v) the foregoing shall not prohibit the payment described in
Schedule 5.14.
SECTION 5.15. Sale and Lease-Back Transactions. The Borrower will
---------------------------------
not, nor will it permit any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, with any Person whereby it shall sell or transfer any
asset, real or personal, whether now owned or hereafter acquired, and thereafter
rent or lease such asset or other assets which it intends to use for
substantially the same purpose or purposes as the asset being sold or
transferred, except that the Borrower may enter into any such arrangement within
90 days after acquiring the asset that is sold or transferred; provided that (i)
--------
for purposes of determining compliance with clause (iii) of Section 5.11(a),
such arrangement shall be deemed to constitute Capital Financing Debt in a
principal amount
<PAGE>
-82-
equal to the amount that would constitute Debt if such arrangement were
accounted for as a capital lease and (ii) the Borrower shall not enter into any
such arrangement if, after giving effect thereto, the Borrower would not be in
compliance with clause (iii) of Section 5.11(a).
SECTION 5.16. Investments. The Borrower will not, nor will it permit
------------
any of its Subsidiaries to, make or acquire any Investment in any Person
(including any Subsidiary) other than:
(a) Temporary Cash Investments;
(b) the acquisition by the Borrower of all the outstanding capital
stock of a corporation pursuant to a Permitted Acquisition;
(c) the Management Notes;
(d) Tax Advances permitted under Section 5.12; and
(e) Investments consisting of advances and capital contributions made
by the Borrower in cash to any Permitted Subsidiary; provided that (i) such
--------
Investments in Finance Corp. shall be limited to amounts necessary to
discharge franchise taxes and similar liabilities incidental to its
existence, (ii) such Investments in any other Permitted Subsidiary shall be
limited to amounts necessary to discharge liabilities permitted to be
incurred by such Subsidiaries under Section 5.04, (iii) no such Investment
shall be made more than five Domestic Business Days prior to the date that
payment is to be made in respect of the liability to be discharged with the
proceeds of such Investment and (iv) such Investments shall be represented
by promissory notes or capital stock pledged pursuant to the Pledge
Agreement or partnership interests subject to a perfected Lien in favor of
the Security Agent.
SECTION 5.17. Negative Pledge. The Borrower will not, nor will it
----------------
permit any of its Subsidiaries to, create, assume or suffer to exist any Lien on
any asset now owned or
<PAGE>
-83-
hereafter acquired by it, except Liens granted under the Security Documents and
except:
(a) any Lien (other than a Lien securing Debt) existing on any asset
(other than an asset subject to a security interest granted under the
Pledge Agreement or the Security Agreement) prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(b) Liens for taxes not delinquent or being contested in good faith
and by appropriate proceedings;
(c) deposits or pledges to secure obligations under workers'
compensation, social security or similar laws, or under unemployment
insurance;
(d) mechanics', workers', materialmen's, warehousemen's, landlords' or
other like Liens arising in the ordinary course of business with respect to
obligations which are not due or which are being contested in good faith;
(e) easements, rights-of-way, charges, covenants, restrictions and
matters of public record, survey defects and imperfections of title that do
not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business, in each
case affecting real property;
(f) the reservation by any prior grantor of any right, title or
interest in and to all oil, gas and other hydrocarbon substances, minerals,
ores and metals of every nature and kind in and under real property that do
not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
(g) any Liens securing Capital Financing Debt; provided that such Lien
--------
does not attach to any asset other than the asset financed by such Capital
Financing Debt and proceeds thereof;
(h) Liens, if any, on credit card receivables sold pursuant to the
Credit Card Agreements that arise under
<PAGE>
-84-
the Credit Card Agreements by virtue of such sale and proceeds thereof;
(i) Liens incurred in the ordinary course of business to secure
performance of surety and indemnity bonds, leases and other contracts
(other than to secure Debt);
(j) interests (other than Debt) of a lessor or lessee arising under a
lease;
(k) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with
imported goods, which duties are not delinquent or are being contested in
good faith by appropriate proceedings;
(l) unperfected Liens on inventory arising in the ordinary course of
business securing trade accounts payable to suppliers of such inventory
which are not past due or which are being contested in good faith; and
(m) Liens arising in the ordinary course of its business which (i) do
not attach to any asset subject to a security interest granted under the
Security Documents, (ii) do not secure Debt or any other monetary
obligation (other than judgments and appeal bonds not exceeding $2,000,000
in the aggregate) and (iii) do not in the aggregate materially detract from
the value of its assets or materially impair the use thereof in the
operation of its business.
SECTION 5.18. Use of Proceeds and Letters of Credit. The Letters of
--------------------------------------
Credit and the proceeds of the Loans made under this Agreement will be used by
the Borrower only for the purposes set forth in the preliminary statement of
this Agreement. None of such proceeds will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
any Margin Stock.
SECTION 5.19. Grants of Negative Pledges or Dividend Restrictions.
----------------------------------------------------
The Borrower will not, nor will it permit any of its Subsidiaries to, agree to
or become bound by any agreement or other arrangement that would restrict or
impair (i) the ability of the Borrower and its Subsidiaries
<PAGE>
-85-
to grant to the Security Agent a Lien on any of their respective properties or
assets (provided that the foregoing shall not prohibit restrictions in (a)
agreements entered into in connection with the incurrence of Capital Financing
Debt that restrict or impair the ability to grant Liens on the asset financed
thereby while such Capital Financing Debt remains outstanding or (b) the Credit
Card Agreements that restrict or impair the ability to grant Liens on accounts
receivable sold thereunder) or (ii) the ability of any Subsidiary of the
Borrower to pay dividends on its capital stock.
SECTION 5.20. Changes in Accounting. The Borrower will not, nor will
----------------------
it permit any of its Subsidiaries to, change its accounting policies or
practices from those utilized in the preparation of the financial statements of
the Borrower referred to in Section 4.04, except as permitted or required by
generally accepted accounting principles consistently applied.
SECTION 5.21 Fixed Charge Coverage Ratio. The Fixed Charge Coverage
----------------------------
Ratio for the period of four consecutive fiscal quarters ending on the last day
of each fiscal quarter of the Borrower set forth below will not be less than the
ratio set forth below opposite such fiscal quarters:
<TABLE>
<CAPTION>
Fiscal Quarter Ending on: Ratio
- ------------------------- -----
<S> <C>
May 3, 1997 1.90:1.0
August 2, 1997 1.90:1.0
November 1, 1997 2.20:1.0
January 31, 1998 2.20:1.0
May 2, 1998 2.20:1.0
August 1, 1998 2.20:1.0
October 31, 1998 2.40:1.0
January 30, 1999 2.40:1.0
May 1, 1999 2.40:1.0
July 31, 1999 2.40:1.0
October 30, 1999 2.75:1.0
January 29, 2000 2.75:1.0
April 29, 2000 2.75:1.0
July 29, 2000 2.75:1.0
October 28, 2000 3.0:1.0
February 3, 2001 3.0:1.0
May 5, 2001 3.0:1.0
August 4, 2001 3.0:1.0
</TABLE>
<PAGE>
-86-
<TABLE>
<CAPTION>
Fiscal Quarter Ending on: Ratio
- ------------------------- -----
<S> <C>
November 3, 2001 3.0:1.0
February 2, 2002 3.0:1.0
May 4, 2002 3.0:1.0
August 3, 2002 3.0:1.0
November 2, 2002 3.0:1.0
February 1, 2003 3.0:1.0
</TABLE>
SECTION 5.22. Minimum Adjusted Net Worth. Consolidated Adjusted Net
---------------------------
Worth will not at any date be less than Minimum Adjusted Net Worth at such date.
SECTION 5.23. Debt Coverage Ratio. The Debt Coverage Ratio will not
--------------------
at any time during any period set forth below be greater than the ratio set
forth below with respect to such period:
<TABLE>
<CAPTION>
Period
- ------------------------------------------------
From and Including To and Excluding Ratio:
- ------------------ -------------------- ------
<S> <C> <C>
Effective Date January 31, 1998 4.5:1
January 31, 1998 January 30, 1999 3.9:1
January 30, 1999 January 29, 2000 3.40:1
January 29, 2000 February 3, 2001 2.8:1
February 3, 2001 February 2, 2002 2.25:1
February 2, 2002,
and at all times
thereafter 2.0:1
</TABLE>
SECTION 5.24. Capital Expenditures. Capital Expenditures during any
---------------------
fiscal year of the Borrower, commencing with the fiscal year ending on the
Saturday closest to January 31, 1998, will not exceed the sum of (a) $12,500,000
plus (b) during any fiscal year of the Borrower other than the first such fiscal
year, the excess of $12,500,000 over the amount of Capital Expenditures during
the immediately preceding fiscal year; provided that additional Capital
--------
Expenditures not exceeding an aggregate of $30,000,000 for all such periods will
be permitted in excess of those permitted by clauses (a) and (b) above, except
that not more than $7,000,000 of such additional Capital Expenditures shall be
permitted during the first two such fiscal years; and provided further that, to
the extent that Capital Expenditures after December 9, 1996, but prior to the
Saturday closest to January 31, 1997, do not exceed $4,000,000, the excess of
$4,000,000 over the actual amount expended during such period may be added to
the amount of Capital Expenditures permitted under clause (a) above for
<PAGE>
-87-
the fiscal year ending on the Saturday closest to January 31, 1998.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
------------------
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay (i) when due any principal of any
Loan or any reimbursement obligation in respect of a Letter of Credit
Disbursement or (ii) within three Domestic Business Days of the date due,
any interest on any Loan, any fees or any other amount payable hereunder or
under any other Loan Document;
(b) the Borrower shall fail to observe or perform (i) any covenant
contained in clause (a) or (b) of Section 5.01 for three Domestic Business
Days after notice thereof has been given to the Borrower by the Agent at
the request of any Lender or (ii) any covenant contained in clause (i) of
Section 5.01 or in Section 5.07 or in Sections 5.09 to 5.24, inclusive;
(c) the Borrower or any Subsidiary shall fail to observe or perform
any covenant or agreement contained in any Loan Document (other than those
covered by clause (a) or (b) above) for 10 days after written notice
thereof has been given to the Borrower by the Agent at the request of any
Lender;
(d) any representation, warranty, certification or statement made by
the Borrower or any Subsidiary in any Loan Document or in any certificate,
financial statement or other document delivered pursuant to any Loan
Document shall prove to have been incorrect in any material respect when
made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment of
principal, interest or premium in respect of any Material Debt (other than
the Obligations) at maturity;
<PAGE>
-88-
(f) any event or condition (including, without limitation, failure to
make any payment when due) shall occur which results in the acceleration of
the maturity of any Material Debt or enables (or, with the giving of notice
or lapse of time or both, would enable) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity thereof or
to require the prepayment, redemption or repurchase thereof or to terminate
any commitment to lend such Debt;
(g) any of the Trademark Agreements (other than those referred to in
clause (ii) of the definition thereof) or the Credit Card Agreements shall
be canceled, terminated or repudiated (other than termination of a Credit
Card Agreement in connection with the replacement thereof with another
Credit Card Agreement), or any event shall occur that results in any of
such Trademark Agreements having a term that expires earlier than the
initial term thereof, or any default, breach or other event shall occur
that would permit a termination of any of such Trademark Agreements (if the
Trademark Collateral Agreement were not in effect) or the Credit Card
Agreements and shall continue beyond any applicable grace period;
(h) the Borrower or any Subsidiary (i) shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, or (ii) shall consent to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or (iii)
shall make a general assignment for the benefit of creditors, or (iv) shall
fail generally to pay its debts as they become due, or (v) shall take any
corporate action to authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be commenced against
the Borrower or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy,
<PAGE>
-89-
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against
the Borrower or any Subsidiary under the Federal bankruptcy laws as now or
hereafter in effect;
(j) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $1,000,000 which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA or Section
412 of the Internal Revenue Code; or notice of intent to terminate a Plan
or Plans having aggregate Unfunded Liabilities in excess of $2,000,000
(collectively, a "Material Plan") shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate or to cause a trustee to be appointed to administer any
Material Plan or a proceeding shall be instituted by a fiduciary of any
Plan against any member of the ERISA Group to enforce Section 515 or
4219(c)(5) of ERISA where the amount in controversy exceeds $2,000,000 and
such proceeding shall not have been dismissed within 30 days thereafter; or
a Reportable Event or Reportable Events shall have occurred with respect to
a Material Plan and the Agent shall have notified the Borrower that the
Required Lenders have made a determination that, on the basis of such
Reportable Event or Reportable Events, there are reasonable grounds for the
termination of such Material Plan by the PBGC or for the appointment by an
appropriate United States District Court of a trustee to administer such
Material Plan;
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $2,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and shall continue
unsatisfied and unstayed for a period of 10 days, or any action shall be
legally taken by a judgment creditor to levy upon assets or properties of
the Borrower or any Subsidiary to enforce any such judgment;
<PAGE>
-90-
(l) a Change of Control shall occur; or
(m) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any
Subsidiary not to be, a valid, perfected, first priority security interest
in respect of any material amount of collateral, other than as a result of
an act or omission of the Security Agent, the Agent or any Lender and
subject to exceptions as to priority expressly permitted under the Loan
Documents;
then, and in every such event, the Agent shall (i) if requested by Lenders
having more than 50% in aggregate amount of the Commitments, by notice to the
Borrower terminate the Commitments and they shall thereupon terminate, (ii) if
requested by Lenders holding Notes evidencing more than 50% in aggregate
principal amount of the Loans, by notice to the Borrower declare the Notes
(together with accrued interest thereon) to be, and the Notes shall thereupon
become, immediately due and payable (in whole or, in the sole discretion of the
Lenders, from time to time in part) without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower, (iii)
if requested by Lenders having more than 50% of the Letter of Credit Exposure,
require cash collateral as contemplated by Section 2.13(k) in an amount not
exceeding the Letter of Credit Exposure, (iv) exercise and direct the Security
Agent to exercise remedies available under the Guarantee Agreement, the Security
Documents or otherwise, as requested by the Required Lenders, or (v) any
combination of the foregoing; provided that in the case of any of the Events of
--------
Default specified in clause (h) or (i) above with respect to the Borrower
without any notice to the Borrower or any other act by the Agent or the Lenders,
the Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable (in whole) without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
------------------
Borrower under clause (b)(i) or (c) of Section 6.01 promptly upon being
requested to do so by any Lender, and shall thereupon notify all the Lenders
thereof.
<PAGE>
-91-
ARTICLE VII
THE AGENT, SECURITY AGENT AND ISSUING BANKS
SECTION 7.01. Appointment and Authorization. Each Lender irrevocably
------------------------------
appoints and authorizes each of the Agent, the Security Agent and any Issuing
Bank (each being referred to as an "Agent" for purposes of this Article VII) to
take such action as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to such Agent by the
terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.02. Agent and Affiliates. Each Lender that is an Agent
---------------------
shall have the same rights and powers under this Agreement as any other Lender
and may exercise or refrain from exercising the same as though it were not an
Agent, and each such Lender and its affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not an Agent.
SECTION 7.03. Action by Agent. The obligations of any Agent under
----------------
the Loan Documents are only those expressly set forth herein and therein.
Without limiting the generality of the foregoing, no Agent shall be required to
take any action with respect to any Default, except as expressly provided in
Article VI.
SECTION 7.04. Consultation with Experts. Each Agent may consult with
--------------------------
legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither any Agent nor any of its
-------------------
directors, officers, agents, or employees shall be liable for any action taken
or not taken by it in connection herewith (i) with the consent or at the request
of the Required Lenders or (ii) in the absence of its own gross negligence or
willful misconduct. Neither any Agent nor any of its directors, officers,
agents or
<PAGE>
-92-
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower or any Subsidiary; (iii) the
satisfaction of any condition specified in Article III, except receipt of items
required to be delivered to it; or (iv) the validity, effectiveness or
genuineness of this Agreement, any other Loan Document or Transaction Document
or any other instrument or writing furnished in connection herewith. No Agent
shall incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a telecopy, bank wire,
telex or similar writing) believed by it to be genuine or to be signed by the
proper party or parties.
SECTION 7.06. Indemnification. Each Lender shall, ratably in
----------------
accordance with its Loans, Letter of Credit Exposure and unused Commitment,
indemnify each Agent (to the extent not reimbursed by the Borrower) against any
cost, expense (including counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from such Agent's gross negligence or
willful misconduct) that such Agent may suffer or incur in connection with this
Agreement or any other Loan Document or any action taken or omitted by such
Agent hereunder or thereunder.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it
----------------
has, independently and without reliance upon any Agent or any other Lender, 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
also acknowledges that it will, independently and without reliance upon any
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
SECTION 7.08. Successor Agent. Any Agent (other than an Issuing Bank
----------------
in respect of Letters of Credit issued by it) may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor to
such Agent after consultation with
<PAGE>
-93-
the Borrower (but the foregoing shall not be construed to require any consent or
approval by the Borrower). If no successor to such Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which,
in the case of the Agent under this Agreement, shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of its appointment as an Agent by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations. After any retiring Agent's
resignation, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent.
SECTION 7.09. Agents Fees. The Borrower shall pay to each Agent for
------------
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and such Agent.
SECTION 7.10. Sub-Agents. Each Agent may perform any of its
-----------
obligations and exercise any of its rights under the Loan Documents by or
through sub-agents. The provisions of this Article VII shall inure to the
benefit of any sub-agent of any Agent in the same manner and to the same extent
as they inure to the benefit of such Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Euro-
- -------
Dollar Borrowing:
(a) the Agent is advised by the Euro-Dollar Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
the Euro-Dollar Reference Banks in the relevant market for such Interest
Period, or
<PAGE>
-94-
(b) Lenders having 50% or more of the aggregate amount of the
Commitments or Loans of the relevant Class advise the Agent that the
Adjusted London Interbank Offered Rate, as the case may be, as determined
by the Agent will not adequately and fairly reflect the cost to such
Lenders of funding their Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Lenders to make
Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the Agent at
least two Domestic Business Days before the date of any Euro-Dollar Borrowing
for which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
SECTION 8.02. Illegality. If, on or after the date of this
-----------
Agreement, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
govern mental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency
shall make it unlawful or impossible for any Lender (or its Euro-Dollar Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Lender shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Lenders and the Borrower, whereupon until such Lender notifies the Borrower and
the Agent that the circumstances giving rise to such suspension no longer exist,
the obligation of such Lender to make Euro-Dollar Loans shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Lender
shall designate a different Euro-Dollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. If such Lender shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Euro-Dollar Loans to maturity and shall so specify in such notice,
the Borrower shall immediately prepay in full the then outstanding principal
amount of each such Euro-Dollar Loan, together with accrued interest
<PAGE>
-95-
thereon. Concurrently with prepaying each such Euro-Dollar Loan, the Borrower
shall borrow a Base Rate Loan in an equal principal amount from such Lender (on
which interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Lenders), and such Lender shall make such a Base
Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
----------------------------------
the date hereof the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its Euro-Dollar Loans, its Notes,
its participations in Letters of Credit or its obligation to make Euro-
Dollar Loans or acquire participations in Letters of Credit, or shall
change the basis of taxation of payments to any Lender (or its Applicable
Lending Office) of the principal of or interest on its Euro-Dollar Loans or
any other amounts due under this Agreement in respect of its Euro-Dollar
Loans or its obligation to make Euro-Dollar Loans (except for changes in
the rate of tax on, or determined by reference to, the overall net income
of such Lender or its Applicable Lending Office imposed by the jurisdiction
in which such Lender's principal executive office or Applicable Lending
Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Lender (or its Applicable Lending Office) or shall impose on any
Lender (or its Applicable Lending Office) or on the London interbank market
any other condition affecting its Euro-Dollar
<PAGE>
-96-
Loans, its Notes, its participations in Letters of Credit or its obligation
to make Euro-Dollar Loans or acquire participations in Letters of Credit;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan
or holding or acquiring a participation in any Letter of Credit, or to reduce
the amount of any sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or under its Note with respect thereto, by
an amount deemed by such Lender to be material, then, within 15 days after
demand by such Lender (with a copy to the Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on capital of such Lender
(or its Parent) as a consequence of such Lender's obligations hereunder to a
level below that which such Lender (or its Parent) could have achieved but for
such adoption, change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, within 15 days after demand by such Lender
(with a copy to the Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender (or its Parent) for
such reduction.
(c) Each Lender will promptly notify the Borrower and the Agent of
any event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section and will designate
a different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender. A
<PAGE>
-97-
certificate of any Lender claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
---------------------------------------------------
Loans. If (a) the obligation of any Lender to make Euro-Dollar Loans has been
- ------
suspended pursuant to Section 8.02 or (b) any Lender has demanded compensation
under Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Lender through the Agent, have elected that
the provisions of this Section shall apply to such Lender, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(i) all Loans which would otherwise be made by such Lender as Euro-
Dollar Loans shall be made instead as Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Euro-
Dollar Loans of the other Lenders); and
(ii) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. Replacement of Lenders. In the event (a) any Lender
-----------------------
delivers a notice under Section 8.02 or (b) any Lender demands compensation
pursuant to Section 8.03, then the Borrower may, at its sole expense and
effort, require such Lender to assign, without recourse (in accordance with
Section 9.06), all of its rights and obligations under this Agreement and the
Notes to an Assignee which shall assume such assigned obligations; provided that
--------
(i) such assignment shall not conflict with any law, rule or regulation or order
of any court or other Governmental Authority having jurisdiction, (ii) the
Borrower shall have received the written consent of the Agent (and of an Issuing
Bank, if such Lender has a Revolving Loan Commitment) and (iii) such Assignee
(or, in the case of amounts other than principal, interest and accrued Fees, the
Borrower) shall have paid to the transferor Lender in immediately available
funds an amount
<PAGE>
-98-
equal to the sum of the principal of and interest accrued to the date of such
payment on the outstanding Loans and participations in Letter of Credit
Disbursements of such Lender, plus all Fees and other amounts accrued for the
account of such Lender hereunder (including any amounts under Section 2.11 and
Section 8.03, it being understood that such assignment shall be treated as a
prepayment for purposes of Section 2.11); provided further that if prior to any
----------------
such assignment the circumstances or event that resulted in such Lender's notice
under Section 8.02 or demand for compensation under Section 8.03, as the case
may be, cease to cause such Lender to suffer increased costs or reductions in
amounts received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 8.02, as the case may be (including
as a result of any action taken by such Lender), or if such Lender shall waive
its right to claim further compensation under Section 8.03 in respect of such
circumstances or event or shall withdraw its notice under Section 8.02 in
respect of such circumstances or event, as the case may be, then such Lender
shall not thereafter be required to make any such assignment hereunder.
SECTION 8.06. Taxes. (a) For the purposes of this Section 8.06, the
------
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Lender, each Issuing Bank and
---------
the Agent, taxes imposed on its income, and franchise or similar taxes imposed
on it, by a jurisdiction under the laws of which such Lender, such Issuing Bank
or the Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Lender, in which its
Applicable Lending Office is located and (ii) in the case of each Lender, any
United States withholding tax imposed on such payments but only to the extent
that such Lender is subject to United States withholding tax at the time such
Lender first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made
<PAGE>
-99-
pursuant to this Agreement or under any other Loan Document or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
other Loan Document.
(b) Any and all payments by the Borrower to or for the account of any
Lender, any Issuing Bank or the Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
--------
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Lender, such Issuing Bank or the Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Lender, each Issuing Bank
and the Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by such Lender, such Issuing Bank or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be paid within 15 days after such Lender, such Issuing Bank or the Agent
(as the case may be) makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Agent with (i) Internal Revenue Service form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income tax
<PAGE>
-100-
treaty to which the United States is a party which exempts the Lender from
United States withholding tax or reduces the rate of withholding tax on payments
of interest for the account of such Lender or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States or (ii) if such Lender is not a
"bank" or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver either Internal Revenue Code form 1001 or 4224 pursuant
to clause (i) above, a Certificate re Non-Bank Status together with two original
copies of Internal Revenue Service form W-8 (or any successor form prescribed by
the Internal Revenue Service) and any other statement of exemption required
under the Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is entitled to the benefits under an income tax
treaty to which the United States is a party which exempts the Lender from
United States withholding tax or reduces the rate of withholding tax on payments
of interest for the account of such Lender.
(e) For any period with respect to which a Lender has failed to
provide the Borrower or the Agent with the appropriate form pursuant to Section
8.06(d) (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which such form originally was required to
be provided), such Lender shall not be entitled to indemnification under Section
8.06(b) or (c) with respect to Taxes imposed by the United States; provided that
--------
if a Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section, then such Lender will change
the jurisdiction of its Applicable Lending Office if such change (i) will
eliminate or reduce any such additional payment which may thereafter accrue and
(ii) in the judgment of such Lender, is not otherwise disadvantageous (other
than in a de minimis respect) to such Lender.
-- -------
<PAGE>
-101-
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
--------
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case the Borrower, each Issuing Bank or the Agent, at its
address or telecopy number set forth on the signature pages hereof (with a copy
to Freeman Spogli & Co. Incorporated, 599 Lexington Avenue, 18th Floor, New
York, NY 10022, Attention: Mr. J.M. Roth, in the case of any notice to the
Borrower relating to a Default), (y) in the case of any Lender, at its address
or telex number set forth in its Administrative Questionnaire or (z) in the case
of any party, at such other address or telecopy or telex number as such party
may hereafter specify for the purpose by notice to the Agent and the Borrower.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answer back is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
--------
to the Agent under Article II or Article VIII shall not be effective until
received.
SECTION 9.02. No Waivers. No failure or delay by the Agent, the
-----------
Security Agent, any Issuing Bank or any Lender in exercising any right, power or
privilege hereunder or under any other Loan Document shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a) The
---------------------------------------------
Borrower shall pay (i) all reasonable out-of-pocket expenses of the Agent, the
Security Agent, the Documentation Agent and (in the case of expenses relating to
the issuance of a Letter of Credit) the Issuing Bank, including fees and
disbursements of special counsel for the Agent and the Documentation Agent, in
connection with the preparation of this Agreement and the other Loan
<PAGE>
-102-
Documents, any primary or secondary syndication of the credit facilities
hereunder, any waiver or consent hereunder or thereunder or any amendment hereof
or thereof or any Default or alleged Default hereunder and (ii) if an Event of
Default occurs, all reasonable out-of-pocket expenses incurred by the Agent, the
Security Agent, any Issuing Bank or any Lender, including fees and disbursements
of counsel, in connection with such Event of Default and collection, bankruptcy
and other enforcement proceedings resulting therefrom. The Borrower shall
indemnify each Lender against any transfer taxes, documentary taxes, assessments
or charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement or the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, the Security Agent,
the Documentation Agent, each Issuing Bank and each Lender and hold the Agent,
the Security Agent, each Issuing Bank and each Lender harmless from and against
any and all liabilities, losses, damages, costs and expenses of any kind,
including, without limitation, the reasonable fees and disbursements of counsel,
which may be incurred by any Lender (or by the Agent, the Documentation Agent,
the Security Agent or any Issuing Bank in connection with its actions as such)
in connection with any investigative, administrative or judicial proceeding
(whether or not the Agent, the Documentation Agent, the Security Agent, such
Issuing Bank or such Lender shall be designated a party thereto) relating to or
arising out of any Loan Document or any actual or proposed use of proceeds of
Loans or Letters of Credit hereunder; provided that neither the Agent, the
--------
Documentation Agent, the Security Agent, any Issuing Bank nor any Lender shall
have the right to be indemnified hereunder for its own gross negligence or
wilful misconduct as determined by a court of competent jurisdiction.
(c) The provisions of this Section 9.03 shall remain in effect and
survive regardless of any termination of this Agreement or the repayment of the
Obligations.
SECTION 9.04. Sharing of Set-Offs. Each Lender agrees that if it
--------------------
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of its claims in respect of
Letter of Credit Disbursements and principal and interest due with respect to
any Note held by it which is greater than the proportion received by any other
Lender in respect
<PAGE>
-103-
of the aggregate amount of claims in respect of Letter of Credit Disbursements
and principal and interest due with respect to any Note held by such other
Lender, the Lender receiving such proportionately greater payment shall purchase
such participations in the claims in respect of Letter of Credit Disbursements
and Notes held by the other Lenders, and such other adjustments shall be made,
as may be required so that all such payments of claims in respect of Letter of
Credit Disbursements and of principal and interest with respect to the Notes
held by the Lenders shall be shared by the Lenders pro rata; provided that
--------
nothing in this Section shall impair the right of any Lender to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Loan Documents. The Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that any holder of a
participation in a Letter of Credit or Note, whether or not acquired pursuant to
the foregoing arrangements, may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
-----------------------
Agreement or any other Loan Document may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed or otherwise approved in
writing by the Borrower and the Required Lenders (and, if the rights or duties
of the Agent, the Security Agent or the Issuing Banks are affected thereby, by
the Agent, the Security Agent or the Issuing Banks, as the case may be);
provided that no such amendment or waiver shall (i) increase the Commitment of
- --------
any Lender or subject any Lender to any additional obligation without the
consent of such Lender, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder without the consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of principal of any Loan under
Section 2.08(a), (b) or (c) or for any reimbursement of a Letter of Credit
Disbursement or payment of interest on any Loan or any fees hereunder or for any
reduction or termination of any Commitment without the consent of each Lender
affected thereby, (iv) permit the termination of the Trademark Agreement or any
Credit Card Agreements, or any amendment or waiver thereof that would be
materially adverse to the
<PAGE>
-104-
interests of the Borrower or the Lenders, without the consent of each Lender,
(v) permit the release of any material amount of collateral under any Security
Document (except as provided therein), without the consent of each Lender, (vi)
change the percentage of the Commitments, the percentage of the aggregate unpaid
principal amount of the Notes or the number of Lenders which shall be required
for the Lenders or any of them to take any action under this Section or any
other provision of this Agreement, without the consent of each Lender, (vii)
change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently than those holding Loans of any other Class, without
the consent of Lenders holding a majority in interest of the outstanding Loans
and unused Commitments of each affected Class (in addition to any other consent
required under any other clause of this Section) or (viii) change the rights of
Lenders holding Tranche B Term Loans to decline mandatory prepayments as
provided in Section 2.08, without the consent of Lenders holding a majority in
interest of the outstanding Tranche B Term Loans.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
-----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in any or all of its
Commitment or its Loans or its participations in Letters of Credit. In the
event of any such grant by a Lender of a participating interest to a
Participant, whether or not upon notice to the Borrower and the Agent, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any Lender
may grant such a participating interest shall provide that such Lender shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
--------
that such
<PAGE>
-105-
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver described in clause (i), (ii), (iii), (iv) or
(v) of Section 9.05 without the consent of the Participant. The Borrower agrees
that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article VIII and Section 2.11 with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Lender may at any time assign to one or more banks or other
financial institutions (each an "Assignee") all, or a proportionate part of all,
of its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an instrument
executed by such Assignee and such transferor Lender, after consultation with
the Borrower regarding such assignment (but the foregoing shall not be construed
to require any consent or approval by the Borrower) and with (and subject to)
the subscribed consent of the Agent (except in the case of assignments to
Affiliates of Lenders), which shall not be unreasonably withheld, and, in the
case of an assignment of a Revolving Loan Commitment, the Issuing Banks;
provided that (i) each such assignment shall be in a minimum amount of
- --------
$5,000,000 or, if less, all the remaining rights and obligations of the
transferor Lender, and (ii) any such assignment of rights and obligations in
respect of any Class of Loans or Commitments shall be made ratably of all rights
and obligations in respect of such Class but shall not require a ratable
assignment of rights and obligations in respect of another Class. Upon
execution and delivery of such an instrument, payment by such Assignee to such
transferor Lender of an amount equal to the purchase price agreed between such
transferor Lender and such Assignee, delivery to the Agent of an executed copy
of such instrument and payment to the Agent by the Assignor of a processing fee
of $3,500, then such Assignee shall be a Lender party to this Agreement and
shall have all the rights and obligations of a Lender with a Commitment as set
forth in such instrument of assumption, and the transferor Lender shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this
<PAGE>
-106-
subsection (c), the transferor Lender, the Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note or Notes are issued to
the Assignee, at the Borrower's expense. If the Assignee is not incorporated
under the laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as to exemption from
deduction or withholding of any United States Federal income taxes in accordance
with Section 8.06. The Agent will maintain a copy of each instrument of
assignment delivered to and accepted by it pursuant to this Section 9.06(c) and
a register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time (the "Register"). The Agent will not grant its consent to any assignment
by any Lender without recording such assignment in the Register.
(d) Any Lender may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.06 than such Lender would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.06
requiring such Lender to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.07. Collateral. Each of the Lenders represents to the
-----------
Agent and each of the other Lenders that it in good faith is not relying upon
any Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. Waiver of Trial by Jury. Each of the parties hereto
------------------------
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby.
<PAGE>
-107-
SECTION 9.09. New York Law. THIS AGREEMENT AND EACH NOTE SHALL BE
-------------
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 9.10. Counterparts; Integration. This Agreement may be
--------------------------
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.11. Limitation on Recourse. Notwithstanding any contrary
-----------------------
provision of this Agreement or any other Loan Document, it is expressly agreed
that the Agent, the Security Agent, each Issuing Bank and each Lender shall look
solely to the assets of the Borrower (and of any Subsidiary party to the
Guarantee Agreement or any Security Document) for the payment and performance of
the obligations of the Borrower hereunder and thereunder, without recourse
against any partner in the Borrower or any assets of such partner on account of
such obligations.
SECTION 9.12. Interest Rate Limitation. Notwithstanding anything
-------------------------
herein or in the Notes to the contrary, if at any time the applicable interest
rate, together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other Loan Document, or otherwise contracted for, charged, received, taken or
reserved by any Lender, shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by such
Lender in accordance with applicable law, the rate of interest payable under the
Note or Notes held by such Lender, together with all Charges payable to such
Lender, shall be limited to the Maximum Rate.
<PAGE>
-108-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
BRYLANE, L.P.,
by VGP CORPORATION,
General Partner,
by _______________________________
Title:
463 Seventh Avenue
21st Floor
New York, NY 10018
Attention of Chief
Financial Officer
Telecopy number:212-613-9567
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent,
by _______________________________
Title:
60 Wall Street
New York, N.Y. 10260
Attention of Deborah A.
Brodheim
Telex number:177615 MGT UT
Telecopy number:212-648-5018
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
by _______________________________
Title:
<PAGE>
-109-
MERRILL LYNCH CAPITAL
CORPORATION,
by _______________________________
Title:
World Financial Center
North Tower
250 Vesey Street
7th Floor
New York, NY 10281-1307
BANK OF AMERICA ILLINOIS,
by _______________________________
Title:
231 LaSalle Street
Chicago, IL 60697
THE BANK OF NOVA SCOTIA,
by _______________________________
Title:
One Liberty Plaza
165 Broadway
26th Floor
New York, NY 10006
THE FIRST NATIONAL BANK OF BOSTON,
by _______________________________
Title:
100 Federal Street
Boston, MA 02106-2016
<PAGE>
-110-
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
by _______________________________
Title:
31 West 52nd Street
New York, NY 10019
by _______________________________
Title:
FLEET NATIONAL BANK,
by _______________________________
Title:
One Federal Street
Boston, MA 02211
<PAGE>
-111-
WELLS FARGO BANK, N.A.
by _______________________________
Title:
333 South Grand Avenue
9th Floor
Los Angeles, CA 90071
THE FUJI BANK, LIMITED,
by _______________________________
Title:
225 West Wacker Drive
Suite 2000
Chicago, IL 60606
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.,
by _______________________________
Title:
350 South Grand Avenue
Suite 3000
Los Angeles, CA 90071
PNC BANK, NATIONAL ASSOCIATION
by _______________________________
Title:
249 Fifth Avenue
2nd Floor
Pittsburgh, PA 15222-2707
<PAGE>
-112-
UNION BANK OF CALIFORNIA,
by _______________________________
Title:
350 California Street
San Francisco, CA 94104-1402
BANQUE PARIBAS,
by _______________________________
Title:
1200 Smith Street
Suite 3100
Houston, TX 77002
by _______________________________
Title:
CORESTATES BANK,
by _______________________________
Title:
1345 Chestnut Street
Philadelphia, PA 19101
CAISSE NATIONALE DE CREDIT
AGRICOLE,
by _______________________________
Title:
520 Madison Avenue
New York, NY 10022
<PAGE>
-113-
IMPERIAL BANK,
by _______________________________
Title:
9920 South La Cienega Boulevard
Suite 1015
Inglewood, CA 90301
NATIONAL CITY BANK OF INDIANA,
by _______________________________
Title:
101 West Washington Street
Indianapolis, IN 46255
THE SUMITOMO BANK, LTD.,
by _______________________________
Title:
450 Lexington Avenue
Suite 1700
New York, NY 10017
by _______________________________
Title:
<PAGE>
-114-
ARAB BANKING CORPORATION,
by _______________________________
Title:
277 Park Avenue
32nd Floor
New York, NY 10172-3299
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by _______________________________
Title:
One Parkview Plaza
5th Floor
Oakbrook Terrace, IL 60181
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY,
by _______________________________
Title:
1295 State Street
Springfield, MA 01109
EATON VANCE SENIOR DEBT PORTFOLIO,
by _______________________________
24 Federal Street
Boston, MA 02110
<PAGE>
-115-
INDOSUEZ CAPITAL,
by _______________________________
Title:
1211 6th Avenue
7th Floor
New York, NY 10036
METROPOLITAN LIFE INSURANCE CO.,
by _______________________________
Title:
333 South Grand Avenue
Suite 400
Los Angeles, CA 90071
KZH HOLDING CORPORATION,
by _______________________________
Title:
c/o Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, NY 10001
<PAGE>
-116-
BANQUE PARIBAS,
by _______________________________
Title:
787 7th Avenue
32nd Floor
New York, NY 10019
AMSOUTH BANK OF ALABAMA,
by _______________________________
Title:
1900 5th Avenue North
11th Floor
Birmingham, AL 35203
THE BANK OF NEW YORK,
by _______________________________
Title:
One Wall Street
New York, NY 10286
<PAGE>
EXHIBIT 10.2
[Form of]
TRANCHE A TERM NOTE
New York, New York
April 30, 1997
For value received, BRYLANE, L.P., a Delaware limited partnership (the
"Borrower"), promises to pay to the order of (the
"Lender"), for the account of its Applicable Lending Office, (i) on each
Quarterly Payment Date on which a payment of principal is due in respect of
Tranche A Term Loans pursuant to the Credit Agreement referred to below, the
unpaid principal amount of Tranche A Term Loans of the Lender due and payable to
the Lender on such Quarterly Payment Date, as provided in the Credit Agreement,
and (ii) on the Tranche A Maturity Date, the aggregate unpaid principal amount
of Tranche A Term Loans of the Lender. The Borrower also promises to pay
interest on the unpaid principal amount of each such Tranche A Term Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Morgan
Guaranty Trust Company of New York, 60 Wall Street, New York, New York.
All Tranche A Term Loans made by the Lender and all repayments of the
principal of any such Tranche A Term Loans shall be recorded by the Lender and,
prior to any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Tranche A Term Loan then outstanding shall
be endorsed by the Lender on the schedule attached hereto, or on a continuation
of such schedule attached to and made a part hereof; provided that the failure
--------
of the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under any of the other Loan Documents.
This note is one of the Notes referred to in the Credit Agreement
dated as of April 30, 1997 among the Borrower, the Lenders listed on the
signature pages thereof, Morgan Guaranty Trust Company of New York, as
Administrative Agent, and Merrill Lynch Capital Corporation, as Documentation
Agent (as the same may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference
<PAGE>
2
is made to the Credit Agreement for provisions for the mandatory and optional
prepayment hereof and the acceleration of the maturity hereof.
Notwithstanding any contrary provision of the Credit Agreement or any
other Loan Document, it is expressly agreed that the Agent, the Security Agent,
the Issuing Bank and each Lender shall look solely to the assets of the Borrower
(and of any Subsidiary party to the Guarantee Agreement or any Security
Document) for the payment and performance of the obligations of the Borrower
hereunder and thereunder, without recourse against any partner in the Borrower
or any assets of such partner on account of such obligations.
BRYLANE, L.P.,
by VGP CORPORATION, General
Partner,
by
______________________
Title:
<PAGE>
3
LOANS AND PAYMENTS OF PRINCIPAL
Class Amount Amount of Unpaid
of of Principal Principal Notations
Date Loan Loan Repaid Balance Made by
- ------- ----- ------ --------- --------- ---------
<PAGE>
EXHIBIT 10.3
[Form of]
TRANCHE B TERM NOTE
New York, New York
April 30, 1997
For value received, BRYLANE, L.P., a Delaware limited partnership (the
"Borrower"), promises to pay to the order of (the
"Lender"), for the account of its Applicable Lending Office, (i) on each
Quarterly Payment Date on which a payment of principal is due in respect of
Tranche B Term Loans pursuant to the Credit Agreement referred to below, the
unpaid principal amount of Tranche B Term Loans of the Lender due and payable to
the Lender on such Quarterly Payment Date, as provided in the Credit Agreement,
and (ii) on the Tranche B Maturity Date, the aggregate unpaid principal amount
of Tranche B Term Loans of the Lender. The Borrower also promises to pay
interest on the unpaid principal amount of each such Tranche B Term Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Morgan
Guaranty Trust Company of New York, 60 Wall Street, New York, New York.
All Tranche B Term Loans made by the Lender and all repayments of the
principal of any such Tranche B Term Loans shall be recorded by the Lender and,
prior to any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Tranche B Term Loan then outstanding shall
be endorsed by the Lender on the schedule attached hereto, or on a continuation
of such schedule attached to and made a part hereof; provided that the failure
--------
of the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under any of the other Loan Documents.
This note is one of the Notes referred to in the Credit Agreement
dated as of April 30, 1997 among the Borrower, the Lenders listed on the
signature pages thereof, Morgan Guaranty Trust Company of New York, as
Administrative Agent and Merrill Lynch Capital Corporation, as Documentation
Agent (as the same may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference
<PAGE>
2
is made to the Credit Agreement for provisions for the mandatory and optional
prepayment hereof and the acceleration of the maturity hereof.
Notwithstanding any contrary provision of the Credit Agreement or any
other Loan Document, it is expressly agreed that the Agent, the Security Agent,
the Issuing Bank and each Lender shall look solely to the assets of the Borrower
(and of any Subsidiary party to the Guarantee Agreement or any Security
Document) for the payment and performance of the obligations of the Borrower
hereunder and thereunder, without recourse against any partner in the Borrower
or any assets of such partner on account of such obligations.
BRYLANE, L.P.,
by VGP CORPORATION, General
Partner,
by
______________________
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
Class Amount Amount of Unpaid
of of Principal Principal Notations
Date Loan Loan Repaid Balance Made by
- ------- ----- ------ --------- --------- ---------
<PAGE>
EXHIBIT 10.4
GUARANTEE AGREEMENT dated as of April 30, 1997, among the
subsidiaries of BRYLANE L.P., a Delaware limited partnership
("Brylane"), listed on Schedule I hereto and such other
-------
subsidiaries as shall become parties hereto pursuant to Section
15 hereof (such listed and other subsidiaries of Brylane being
referred to herein individually as a "Guarantor" and collectively
---------
as the "Guarantors"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
----------
as administrative agent (the "Agent") for the lenders (the
-----
"Lenders") and the Issuing Banks (as defined in the Credit
-------
Agreement) party to the Credit Agreement dated as of April 30,
1997 (as amended from time to time, the "Credit Agreement") among
----------------
Brylane, the Lenders, the Agent and MERRILL LYNCH CAPITAL
CORPORATION, as Documentation Agent (the "Documentation Agent").
-------------------
The Lenders have respectively agreed to make loans to Brylane, and the
Issuing Banks (such term and the other capitalized terms used herein and not
otherwise defined herein having the meanings assigned to them in the Credit
Agreement) have agreed to issue the Letters of Credit for the account of
Brylane. The obligations of the Lenders to lend, and of the Issuing Bank to
issue Letters of Credit, under the Credit Agreement are conditioned on, among
other things, the execution and delivery by the Guarantors of a guarantee
agreement in the form hereof. As Subsidiaries of Brylane, the Guarantors
acknowledge that they will derive substantial benefits from the extension of
credit to Brylane under the Credit Agreement. As consideration therefor and in
order to induce the Lenders to make Loans and to induce the Issuing Banks to
issue Letters of Credit, the Guarantors are willing to execute and deliver this
Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Each of the Guarantors unconditionally and irrevocably
Guarantees, jointly with the other Guarantors and severally, as a primary
obligor and not merely as a surety, (a) the due and punctual payment by Brylane
of (i) the principal of and interest on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for repayment or
otherwise; (ii) each payment required to be made by Brylane under Section 2.13
of
<PAGE>
2
the Credit Agreement in respect of any Letter of Credit Disbursement, when and
as due, including interest thereon, if any; (iii) all other monetary obligations
of Brylane to the Lenders, the Issuing Banks, the Agent, the Security Agent and
the Documentation Agent under the Credit Agreement and the other Loan Documents
to which Brylane is or is to be a party; and (iv) each payment required to be
made by Brylane under any Rate Protection Agreement that was entered into by
Brylane with a counterparty that was a Lender at the time such Rate Protection
Agreement was entered into; (b) the due and punctual performance of all other
obligations of Brylane under the Credit Agreement, the other Loan Documents and
any Rate Protection Agreement referred to in clause (iv) above; and (c) the due
and punctual payment and performance of all obligations of each Subsidiary under
the Loan Documents to which it is or is to be a party (all the foregoing
obligations being collectively called the "Obligations"). Each of the Guarantors
-----------
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and it will remain bound upon
its guarantee notwithstanding any extension or renewal of any Obligation.
SECTION 2. Each of the Guarantors waives presentment to, demand of
payment from and protest to Brylane or any Subsidiary of any of the Obligations,
and also waives notice of acceptance of its guarantee and notice to protest for
nonpayment. The obligations of each Guarantor hereunder shall not be affected
by (a) the failure of the Agent, the Security Agent, the Documentation Agent,
the Issuing Banks or any Lender to assert any claim or demand or to enforce any
right or remedy against Brylane or any Subsidiary under the provisions of any
Loan Document or otherwise; (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any Loan
Document, any guarantee or any other agreement, including with respect to any
other Guarantor under this Agreement; (c) the release of any security held by
the Agent, the Security Agent, the Documentation Agent, the Issuing Bank or any
Lender for the Obligations of any of them; or (d) the failure of the Agent, the
Security Agent, the Documentation Agent, the Issuing Banks or any Lender to
exercise any right or remedy against any other Guarantor or guarantor of the
Obligations.
SECTION 3. Each of the Guarantors further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that the resort be had by the Agent, the Security
<PAGE>
3
Agent, the Documentation Agent, the Issuing Banks or any Lender to any security
held for payment of the Obligations or to any balance of any deposit account or
credit on the books of the Agent, the Security Agent, the Documentation Agent,
the Issuing Banks or any Lender in favor of Brylane or any other person.
SECTION 4. The obligations of each Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Agent, the Security Agent, the Documentation Agent, the Issuing
Bank or any Lender to assert any claim or demand or to enforce any remedy under
any Loan Document, any guarantee or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of any
Guarantor as a matter of law or equity (other than the indefeasible payment in
full of all the Obligations).
SECTION 5. Each of the Guarantors further agrees that its guarantee
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by the Agent, the Security Agent, the Documentation Agent,
the Issuing Banks or any Lender upon the bankruptcy or reorganization of
Brylane, any Guarantor or otherwise.
SECTION 6. In furtherance of the foregoing and not in limitation of
any other right which the Agent, the Security Agent, the Documentation Agent,
the Issuing Banks or any Lender has at law or in equity against any Guarantor by
virtue hereof, upon the failure of Brylane or any Subsidiary to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of repayment or otherwise, each of the Guarantors
hereby promises to and will, upon receipt of written demand by the Agent,
forthwith pay, or cause to be paid, to the Agent for distribution to the
Lenders, the Issuing Banks,
<PAGE>
4
the Documentation Agent and the Security Agent, if and as appropriate, in cash
the amount of such unpaid Obligation. Each Guarantor hereby waives any claim,
right or remedy which such Guarantor may now have or hereafter acquire against
Brylane or any other subsidiary that arises hereunder, including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of such Guarantor against Brylane or any other Subsidiary whether or
not such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise. If any amount shall erroneously be paid to any
Guarantor on account of such subrogation, contribution, reimbursement, indemnity
and similar rights, such amount shall be held in trust for the benefit of the
Lenders and shall forthwith be paid to the Agent to be credited and applied to
the payment of the Obligations. Any term or provision of this Agreement to the
contrary notwithstanding, the maximum aggregate amount of the Obligations
guaranteed hereunder by any Guarantor shall not exceed the maximum amount that
can be hereby guaranteed by the Guarantor without rendering this Agreement, as
it relates to such Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
SECTION 7. Each of the Guarantors jointly and severally represents
and warrants that all representations and warranties contained in the Credit
Agreement which relate to the Guarantors are true and correct.
SECTION 8. The guarantees made hereunder shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid and so long as the Lenders have any further commitment to lend
or any Issuing Bank has any further obligation to issue Letters of Credit under
the Credit Agreement or any Letter of Credit is outstanding, and shall be
reinstated to the extent provided in Section 5. Each Guarantor shall be
released from its guarantee hereunder in the event that all the capital stock of
such Guarantor shall be sold, transferred or otherwise disposed of, in
accordance with the terms of the Credit Agreement, by Brylane or a Subsidiary
that shall own such stock, to a person that is not an Affiliate of Brylane, if
the Required Lenders shall have consented to such sale, transfer or other
disposition (and if the terms of any such consent shall not provide otherwise).
<PAGE>
5
SECTION 9. This Agreement and the terms, covenants and conditions
hereof shall be binding upon each Guarantor and its successors and shall inure
to the benefit of the Agent, the Security Agent, the Documentation Agent, the
Issuing Banks and the Lenders and their respective successors and assigns. None
of the Guarantors shall be permitted to assign or transfer any of its rights or
obligations under this Agreement, except as expressly contemplated by this
Agreement or the Credit Agreement.
SECTION 10. No failure on the part of the Agent to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Agent, the Security Agent, the Documentation Agent, the
Issuing Banks or any Lender preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder and
under the other Loan Documents are cumulative and are not exclusive of any other
remedies provided by law. Except as provided in the Credit Agreement, none of
the Agent, the Security Agent, the Documentation Agent, the Issuing Banks or the
Lenders shall be deemed to have waived any rights hereunder or under any other
agreement or instrument unless such waiver shall be in writing and singed by
such parties.
SECTION 11. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 12. All communications and notices hereunder shall be in
writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Guarantor shall be given to it in
care of Brylane at the address specified in the Credit Agreement for notices to
Brylane thereunder.
SECTION 13. In case any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any respect
with respect to any Guarantor, no party hereto shall be required to comply with
such provision with respect to such Guarantor for so long as such provision is
held to be invalid, illegal or unenforceable and the validity, legality and
enforceability of the remaining provisions contained herein, and of such
provision with respect to any other Guarantor, shall not in any way be affected
or impaired. The parties shall endeavor in good-faith negotiations to replace
any
<PAGE>
6
invalid, illegal or unenforceable provisions with valid provisions, the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 14. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument; provided that this
--------
Agreement shall be construed as a separate agreement with respect to each
Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Guarantor and without
affecting the obligations of any other Guarantor hereunder. This Agreement
shall be effective with respect to any Guarantor when a counterpart which bears
the signature of such Guarantor shall have been delivered to the Agent.
SECTION 15. Upon execution and delivery by the Agent and a Subsidiary
of an instrument in the form of Annex 1 attached hereto, such Subsidiary shall
become a Guarantor hereunder with the same force and effect as if originally
named as Guarantor herein. The execution and delivery of any such instrument
shall not require the consent of any other Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Agreement.
<PAGE>
7
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BRYLANE CAPITAL CORP., as a
Guarantor,
by
_________________________
Name:
Title:
B.L. CATALOG DISTRIBUTION,
INC., as a Guarantor,
by
_________________________
Name:
Title:
B.L. CATALOG DISTRIBUTION
PARTNERSHIP, as a Guarantor,
by B.L. CATALOG DISTRIBUTION
INC., General Partner,
by
______________________
Name:
Title:
by BRYLANE, L.P., General
Partner,
by VGP Corporation,
General Partner,
by
___________________
Name:
Title:
<PAGE>
8
B.L. MANAGEMENT SERVICES,
INC., as a Guarantor,
by
_________________________
Name:
Title:
B.L. MANAGEMENT SERVICES
PARTNERSHIP, as a Guarantor,
by B.L. MANAGEMENT SERVICES,
INC., General Partner,
by
______________________
Name:
Title:
by B.N.Y. SERVICE CORP.,
General Partner,
by
-------------------
Name:
Title:
B.N.Y. SERVICE CORP., as a
Guarantor,
by
-------------------------
Name:
Title:
K.S. MANAGEMENT SERVICES,
INC.,
by
-------------------------
Name:
Title:
<PAGE>
9
C.O.B. MANAGEMENT SERVICES,
INC., as a Guarantor,
by
-------------------------
Name:
Title:
CHADWICK'S TRADENAME SUB,
INC., as a Guarantor,
by
-------------------------
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as administrative
agent,
by
_________________________
Name:
Title:
<PAGE>
EXHIBIT 10.5
PLEDGE AGREEMENT dated as of April 30, 1997 among BRYLANE,
L.P., a Delaware limited partnership (the "Borrower"), such
--------
subsidiaries of the Borrower as shall become parties hereto
pursuant to Section 5.16 hereof (collectively, the "Subsidiary
----------
Pledgors"; the Borrower and the Subsidiary Pledgors being
--------
collectively called the "Pledgors"); and MORGAN GUARANTY TRUST
--------
COMPANY OF NEW YORK, as security agent (in such capacity, the
"Security Agent") for the Secured Parties, as defined herein.
--------------
Reference is made to the Credit Agreement dated as of April 30, 1997
(as amended from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lenders party thereto (the "Lenders"), Morgan Guaranty Trust Company of New
-------
York, as administrative agent (in such capacity, the "Agent") and Merrill Lynch
-----
Capital Corporation, as documentation agent (in such capacity, the
"Documentation Agent"). The Lenders have agreed to extend credit to the
-------------------
Borrower pursuant to, and subject to the terms and conditions specified in, the
Credit Agreement. The obligations of the Lenders to extend credit under the
Credit Agreement are conditioned upon, among other things, the execution and
delivery by the Pledgors of a pledge agreement in the form hereof to secure (a)
the due and punctual payment by the Borrower of (i) the principal of and
interest on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise; (ii) each payment
required to be made by the Borrower under the Credit Agreement in respect of any
Letter or Letters of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral, (iii) all other monetary obligations of the Borrower to the Secured
Parties under the Credit Agreement and the other Loan Documents to which the
Borrower is or is to be a party and (iv) each payment required to be made by the
Borrower under any Rate Protection Agreement entered into by the Borrower with a
counterparty that was a Lender at the time such Rate Protection Agreement was
entered into; (b) the due and punctual performance of all other obligations of
the Borrower under the Credit Agreement and the other Loan Documents to which
the Borrower is or is to be a party and (c) the due and punctual payment and
performance of all obligations of each Subsidiary under the Loan Documents to
which it is or is to be a party (all the
<PAGE>
2
foregoing obligations being collectively called the "Obligations").
-----------
Accordingly, the Pledgors and the Security Agent hereby agree as
follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Terms Defined in the Credit Agreement. Terms used
-------------------------------------
herein and not otherwise defined herein shall have the meanings set forth in the
Credit Agreement.
SECTION 1.02. Definition of Certain Terms Used Herein. As used
---------------------------------------
herein, the following terms shall have the following meanings:
"Collateral" shall have the meaning assigned to such term in Section
----------
2.01.
"Credit Agreement" shall have the meaning assigned to such term in the
----------------
preliminary statement of this Agreement.
"Federal Securities Laws" shall have the meaning assigned to such term
-----------------------
in Section 4.03.
"Obligations" shall have the meaning assigned to such term in the
-----------
preliminary statement of this Agreement.
"Pledged Notes" shall have the meaning assigned to such term in
-------------
Section 2.01.
"Pledged Securities" shall mean the Pledged Stock, the Pledged Notes,
------------------
all other shares of capital stock, debt securities and other securities
(including warrants, options and similar rights to acquire securities) now or
hereafter included in the Collateral and all stock certificates and other
instruments evidencing any such securities.
"Pledged Stock" shall have the meaning assigned to such term in
-------------
Section 2.01.
"Secured Parties" shall mean (a) the Lenders party to the Credit
---------------
Agreement; (b) each counterparty to a Rate Protection Agreement entered into
with the Borrower, if such counterparty was a Lender at the time such Rate
Protection Agreement was entered into; (c) the Agent, the Security
<PAGE>
3
Agent, the Issuing Banks and the Documentation Agent, in their capacities as
such under each Loan Document; (d) the beneficiaries of each indemnification
obligation undertaken by any Pledgor under any Loan Document; and (e) the
successors and assigns of the foregoing.
ARTICLE II
Pledge
------
SECTION 2.01. Pledge. As security for the payment or performance, as
------
the case may be, of the Obligations, each Pledgor hereby bargains, sells,
conveys, assigns, sets over, mortgages, pledges, hypothecates and transfers to
the Security Agent, its successors and its assigns, for the benefit of the
Secured Parties, and hereby grants to the Security Agent, its successors and
assigns, for the benefit of the Secured Parties, a security interest in, all of
such Grantor's right, title and interest in, to and under (a) the shares of
capital stock listed opposite the name of such Pledgor on Schedule I hereto and
all shares of the capital stock of any Subsidiary hereafter acquired by such
Pledgor (the "Pledged Stock") and the certificates representing the Pledged
-------------
Stock; (b) the promissory notes listed opposite the name of such Pledgor on
Schedule I hereto and all promissory notes or other debt securities of any
Subsidiary hereafter acquired by such Pledgor (the "Pledged Notes") and the
-------------
certificates representing the Pledged Notes; (c) all other property which may be
delivered to and held by the Security Agent pursuant to the terms hereof; (d)
subject to Section 2.04, all payments of dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed, in
respect of, in exchange for or upon the conversion of the securities referred to
in clauses (a), (b) and (c) above; (e) subject to Section 2.04, all rights and
privileges of such Pledgor with respect to the securities and other property
referred to in clauses (a), (b), (c) and (d) above; and (f) all proceeds of any
of the foregoing (the items referred to in clauses (a) through (f) being
collectively called the "Collateral").
----------
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and references pertaining or incidental thereto,
unto the Security Agent, its successors and its assigns, for the benefit of the
Secured Parties, forever; subject, however, to the terms, covenants and
------- -------
conditions hereinafter set forth.
<PAGE>
4
SECTION 2.02. Delivery of the Collateral; Intercompany Obligations.
----------------------------------------------------
(a) Upon delivery to the Security Agent, (i) the Pledged Securities shall be
accompanied by stock powers duly executed in blank or other instruments of
transfer satisfactory to the Security Agent and by such other instruments and
documents as the Security Agent may reasonably request and (ii) all other
property comprising part of the Collateral shall be accompanied by proper
instruments of assignment duly executed by the applicable Pledgor and such other
instruments or documents as the Security Agent may reasonably request. Each
delivery of Pledged Securities shall be accompanied by a schedule describing the
securities theretofore and then being pledged hereunder, which schedule shall be
attached hereto as Schedule I and made a part hereof. Each schedule so
delivered shall supersede any prior schedules so delivered.
(b) Each of the Pledgors agrees to promptly deliver or cause to be
delivered to the Security Agent any and all Pledged Securities, and any and all
certificates or other instruments or documents representing the Collateral.
(c) Each Pledgor will cause any obligations in respect of borrowed
money or similar advances owed to such Pledgor by the Borrower or any Subsidiary
to be evidenced by a duly executed promissory note which is pledged and
delivered to the Security Agent pursuant to the terms hereof. Any such
promissory notes may be in the form of a demand note for any and all moneys
advanced.
SECTION 2.03. Registration in Nominee Name; Denominations. The
-------------------------------------------
Security Agent shall have the right (in its sole and absolute discretion) to
hold the Pledged Securities in its own name as pledgee, the name of its nominee
or the name of the applicable Pledgor, endorsed or assigned in blank or in favor
of the Security Agent. Each of the Pledgors will promptly give to the Security
Agent copies of any notices or other communications received by it with respect
to Pledged Securities registered in the name of such Pledgor. The Security
Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purpose consistent with this Agreement.
SECTION 2.04. Voting Rights; Dividends and Interest; etc. (a)
------------------------------------------
Unless and until an Event of Default shall have occurred and be continuing and
the Security Agent
<PAGE>
5
shall have notified the Pledgors that their rights under this Section 2.04 are
being suspended:
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers accruing to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms of
this Agreement, the Credit Agreement and the other Loan Documents;
provided, however, that such action would not materially and adversely
-------- -------
affect the rights inuring to a holder of the Pledged Securities or the
rights and remedies of the Security Agent or any of the Secured Parties
under this Agreement or the Credit Agreement or any other Loan Document or
the ability of the Security Agent or any of the Secured Parties to exercise
the same.
(ii) The Security Agent shall execute and deliver to each Pledgor,
or cause to be executed and delivered to such Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers which it is entitled to exercise
pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any
and all dividends and principal and interest payments paid in cash on the
Pledged Securities pledged by it to the extent and only to the extent that
such cash dividends and principal and interest payments are permitted by,
and otherwise paid in accordance with, the terms and conditions of the
Credit Agreement, the other Loan Documents and applicable laws. Other than
(A) pursuant to the first sentence of this paragraph (a)(iii) or (B)
pursuant to a distribution or transfer of any of the assets of a Subsidiary
Pledgor to the Borrower or to a Subsidiary Pledgor that is a Wholly Owned
Consolidated Subsidiary in a transaction permitted under the Credit
Agreement, all noncash dividends and principal and interest payments, and
all dividends paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, return of capital, capital
surplus or paid-in surplus, and all other distributions made on or in
respect of Pledged Securities, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the issuer of any
Pledged Securities or received in exchange for Pledged
<PAGE>
6
Securities or any part thereof, or in redemption thereof, or as a result of
any merger, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, shall be and become part of the
Collateral, and, if received by a Pledgor, shall not be commingled by such
Pledgor with any of its other funds or property but shall be held separate
and apart therefrom, shall be held in trust for the benefit of the Security
Agent and shall be forthwith delivered to the Security Agent in the same
form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, after the Security Agent shall have notified the Pledgors of the
suspension of their rights under paragraph (a)(iii) above, then all rights of
any Pledgor to receive dividends and principal and interest payments which such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Security Agent,
which shall have the sole and exclusive right and authority to receive and
retain such dividends, interest and principal payments. All dividends and
principal and interest payments which are received by any Pledgor contrary to
the provisions of this Section 2.04 shall be received in trust for the benefit
of the Security Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith delivered to the Security Agent in the same form
as so received (with any necessary endorsement). Any and all money and other
property paid over to or received by the Security Agent pursuant to the
provisions of this paragraph (b) shall be retained by the Security Agent in an
account to be established by the Security Agent upon receipt of such money or
other property and shall be applied in accordance with the provisions of Section
4.02.
(c) Upon the occurrence and during the continuance of an Event of
Default, after the Security Agent shall have notified the Pledgors of the
suspension of their rights under paragraph (a)(i) above, then all rights of the
Pledgors to exercise the voting and consensual rights and powers which they are
entitled to exercise pursuant to paragraph (a)(i) of this Section 2.04, and the
obligations of the Security Agent under paragraph (a)(ii) of this Section 2.04,
shall cease, and all such rights shall thereupon become vested in the Security
Agent, which shall have the sole and exclusive right and authority to exercise
such voting and consensual rights and powers.
<PAGE>
7
(d) Any notice given by the Security Agent to the Pledgors suspending
their rights under paragraph (a) above (i) may be given by telephone if promptly
confirmed in writing, (ii) may be given to one or more of the Pledgors at the
same or different times and (iii) may suspend the rights of the Pledgors under
paragraph (a)(i) or paragraph (a)(iii) in part without suspending all such
rights (as specified by the Security Agent in its sole and absolute discretion)
and without waiving or otherwise affecting the Security Agent's rights to give
additional notices from time to time suspending other rights so long as an Event
of Default has occurred and is continuing.
ARTICLE III
Representations, Warranties and Covenants
-----------------------------------------
The Pledgors jointly and severally represent, warrant and covenant to
and with the Security Agent and the Lenders that:
(a) the Pledged Stock and Pledged Notes represent all the outstanding
capital stock of each Subsidiary that is a corporation and all the
outstanding indebtedness of each Subsidiary owed to the Borrower or to
another Subsidiary;
(b) the Pledged Stock has been duly and validly authorized and issued
by the issuers thereof and is fully paid and nonassessable;
(c) except for the security interest granted hereunder, each of the
Pledgors (i) is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on Schedule
I to be owned by such Pledgor, (ii) holds the same free and clear of all
Liens (other than unperfected Liens imposed by law) or security interests
of any other Person, (iii) will make no assignment, pledge, hypothecation
or transfer of, or create any security interest in, the Collateral, other
than pursuant hereto, and (iv) subject to Section 2.04, will cause any and
all Collateral, whether for value paid by any Pledgor or otherwise, to be
forthwith deposited with the Security Agent and pledged or assigned
hereunder;
(d) except for restrictions and limitations imposed by securities laws
generally, the Collateral
<PAGE>
8
pledged hereunder is and will be freely transferable and assignable, and no
portion of such Collateral is or will be subject to any option, right of
first refusal, shareholders agreement, charter or by-law provision,
partnership agreement restriction or other contractual restriction of any
nature which might prohibit, impair, delay or otherwise affect the pledge
of such Collateral hereunder, the sale or disposition of the Collateral
pursuant hereto after the occurrence of an Event of Default or the exercise
by the Security Agent of its rights and remedies hereunder;
(e) each of the Pledgors (i) has the power and authority to pledge the
Collateral pledged by it hereunder in the manner hereby done or
contemplated and (ii) will defend its title or interest thereto or therein
against any and all Liens (other than the Lien of this Agreement), however
arising, of all persons whomsoever;
(f) no consent or approval of any Governmental Authority or any
securities exchange was or is necessary to the validity of the pledge
effected hereby;
(g) by virtue of the execution and delivery by the Pledgors of this
Agreement, when the Pledged Securities, certificates, instruments or
other documents representing or evidencing the Collateral are delivered to
the Security Agent in accordance with this Agreement, the Security Agent
will obtain a legal, valid and perfected first priority security interest
in the Pledged Securities as security for the payment and performance of
the Obligations; and
(h) the pledge effected hereby is effective to vest in the Security
Agent, on behalf of the Secured Parties, the rights of the Security Agent
in the Collateral as set forth herein.
ARTICLE IV
Remedies
--------
SECTION 4.01. Remedies upon Default. If an Event of Default shall
----------------------
have occurred and be continuing, the Security Agent may exercise, to the extent
permitted by law, all the rights of a secured party under the Uniform Commercial
Code of the State of New York (whether or not the Code is in effect in the
jurisdiction where such rights are
<PAGE>
9
exercised) and, in addition, the Security Agent may, without being required to
give any notice, except as herein provided or as may be required by mandatory
provisions of law, sell the Collateral, or any part thereof, at public or
private sale or at any broker's board or on any securities exchange, for cash,
upon credit or for future delivery as the Security Agent shall deem appropriate.
The Security Agent shall be authorized at any such sale (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to persons
who will represent and agree that they are purchasing the Collateral for their
own account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Security Agent shall have
the right to assign, transfer and deliver to the purchaser or purchasers thereof
the Collateral so sold. Each such purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of any
Pledgor, and each Pledgor hereby waives (to the extent permitted by law) all
rights of redemption, stay, valuation and appraisal which such Pledgor now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted.
The Security Agent shall give each Pledgor at least 10 days' prior
written notice (which each Pledgor agrees is reasonable notice within the
meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions) of the Security
Agent's intention to make any sale of Collateral owned by such Pledgor. Such
notice, in the case of a public sale, shall state the time and place for such
sale and, in the case of a sale at a broker's board or on a securities exchange,
shall state the board or exchange at which such sale is to be made and the day
on which the Collateral, or portion thereof, will first be offered for sale at
such board or exchange and, in the case of a private sale, shall state the time
after which any such sale is to be made. Any such public sale shall be held at
such time or times within ordinary business hours and at such place or places as
the Security Agent may fix and state in the notice of such sale. At any such
sale, the Collateral, or portion thereof, to be sold may be sold in one lot as
an entirety or in separate parcels, as the Security Agent may (in its sole and
absolute discretion) determine. The Security Agent shall not be obligated to
make any sale of any Collateral if it shall determine not to do so, regardless
of the fact that notice of sale of such Collateral shall have been given. The
Security Agent may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by
<PAGE>
10
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Security Agent until the sale price is paid in full by the purchaser or
purchasers thereof, but the Security Agent shall not incur any liability in case
any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public sale made pursuant to this Section any
Secured Party may bid for or purchase, free (to the extent permitted by law)
from any right of redemption, stay, valuation or appraisal on the part of any
Pledgor (all said rights being also hereby waived and released to the extent
permitted by law), the Collateral or any part thereof offered for sale and may
make payment on account thereof by using any Obligation then due and payable to
it from any Pledgor as a credit against the purchase price, and the Security
Agent may, upon compliance with the terms of sale, hold, retain and dispose of
such property without further accountability to any Pledgor therefor. For
purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof; the Security Agent shall be free to
carry out such sale pursuant to such agreement, and none of the Pledgors shall
be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Security Agent shall have
entered into such an agreement all Events of Default shall have been remedied
and the Obligations paid in full. As an alternative to exercising the power of
sale herein conferred upon it, the Security Agent may proceed by a suit or suits
at law or in equity to foreclose this Agreement and to sell the Collateral or
any portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver.
SECTION 4.02. Application of Proceeds of Sale. The proceeds of any
-------------------------------
sale of Collateral pursuant to Section 4.01, as well as any Collateral
consisting of cash, shall be applied by the Security Agent as follows:
FIRST: to the payment of all costs and expenses incurred by the Agent
or the Security Agent (in its capacity as such hereunder or under any other
Loan Document) in connection with such sale or otherwise in connection with
this Agreement or any of the Obligations, including all court costs and the
fees and
<PAGE>
11
expenses of its agents and legal counsel, the repayment of all advances
made by the Security Agent hereunder or under any other Loan Document on
behalf of any of the Pledgors and any other costs or expenses incurred in
connection with the exercise of any right or remedy hereunder or under any
other Loan Document;
SECOND: to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD: to the Pledgors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Security Agent shall have absolute discretion as to the time of application
of any such proceeds, moneys or balances in accordance with this Agreement.
Upon any sale of the Collateral by the Security Agent (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt of
the Security Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Security Agent or such officer or be
answerable in any way for the misapplication thereof.
SECTION 4.03. Securities Act, etc. In view of the position of the
-------------------
Pledgors in relation to the Pledged Securities, or because of other present or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
-----------------------
disposition of the Pledged Securities permitted hereunder. The Pledgors
understand that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Security Agent if the Security Agent were to
attempt to dispose of all or any part of the Pledged Securities, and might also
limit the extent to which or the manner in which any subsequent transferee of
any Pledged Securities could dispose of the same. Similarly, there may be other
legal restrictions or limitations affecting the Security Agent in any attempt to
dispose of all or part of the Pledged Securities under applicable Blue Sky or
other state securities laws or
<PAGE>
12
similar laws analogous in purpose or effect. The Pledgors recognize that in
light of the foregoing restrictions and limitations the Security Agent may, with
respect to any sale of Pledged Securities, limit the purchasers to those who
will agree, among other things, to acquire Pledged Securities for their own
account, for investment, and not with a view to the distribution or resale
thereof. The Pledgors acknowledge and agree that in light of the foregoing
restrictions and limitations, the Security Agent, in its sole and absolute
discretion, (a) may proceed to make such a sale whether or not a registration
statement for the purpose of registering the Pledged Securities or part thereof
shall have been filed under the Federal Securities Laws, and (b) may approach
and negotiate with a single possible purchaser to effect such sale. The Pledgors
acknowledge and agree that any such sale might result in prices and other terms
less favorable to the seller than if such sale were a public sale without such
restrictions. In the event of any such sale, the Security Agent shall incur no
responsibility or liability for selling all or any part of the Pledged
Securities at a price which the Security Agent, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at
which the Security Agent sells.
SECTION 4.04. Registration, etc. Each of the Pledgors agrees that,
-----------------
upon the occurrence and during the continuance of an Event of Default, if for
any reason the Security Agent desires to sell any of the Pledged Securities at a
public sale, it will, at any time and from time to time, upon the written
request of the Security Agent, take or cause the issuer of such Pledged
Securities to take such action and prepare, distribute and/or file such
documents, as are required or advisable in the reasonable opinion of counsel for
the Security Agent to permit the public sale of such Pledged Securities. Each
of the Pledgors jointly and severally agrees to (a) indemnify, defend and hold
harmless the Security Agent, the other Secured Parties and their respective
officers, directors, affiliates and controlling persons from and against all
losses, liabilities, expenses, costs (including the reasonable fees and expenses
of legal counsel to the Security Agent and the Agent) and claims (including the
costs of investigation) which they may incur insofar as any such loss,
liability, expense, cost or claim
<PAGE>
13
arises out of or is based upon any alleged untrue statement of a material fact
contained in any prospectus, offering circular or similar document (or any
amendment or supplement thereto), or arises out of or is based upon any alleged
omission to state a material fact required to be stated therein or necessary to
make the statements in any thereof not misleading, except insofar as the same
may have been caused by any untrue statement or omission based upon information
furnished in writing to any Pledgor or the issuer of such Pledged Securities by
the Security Agent or any other Secured Party expressly for use therein, and (b)
enter into an indemnification agreement with any underwriter of or placement
agent for any Pledged Securities, on its standard form, to substantially the
same effect. Each of the Pledgors further agrees to use all reasonable efforts
to qualify, file or register, or cause the issuer of such Pledged Securities to
qualify, file or register, any of the Pledged Securities under the Blue Sky or
other securities laws of such states as may be requested by the Security Agent
and keep effective, or cause to be kept effective, all such qualifications,
filings or registrations. The Pledgors will jointly and severally bear all
costs and expenses of carrying out their obligations under this Section. The
Pledgors acknowledge that there is no adequate remedy at law for failure by them
to comply with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agree that their agreements
contained in this Section may be specifically enforced.
ARTICLE V
Miscellaneous
-------------
SECTION 5.01. Notices. All communications and notices hereunder
-------
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 9.01 of the Credit Agreement. All communications and
notices hereunder to any Subsidiary Pledgor shall be given to it in care of the
Borrower at the address specified in the Credit Agreement for notices to the
Borrower thereunder.
SECTION 5.02. Security Interest Absolute. All rights of the Security
--------------------------
Agent hereunder, the security interests granted hereunder and all obligations of
the Pledgors hereunder shall be absolute and unconditional irrespective of (a)
any lack of validity or enforceability of the Credit Agreement or any other Loan
Document, any agreement with respect to any of the Obligations or any
<PAGE>
14
other agreement or instrument relating to any of the foregoing, (b) any change
in the time, manner or place of payment of, or in any other term of, all or any
of the Obligations, or any other amendment or waiver of or any consent to any
departure from the Credit Agreement, any other Loan Document or any other
agreement or instrument, (c) any exchange, release or nonperfection of any Lien
on other collateral, or any release or amendment or waiver of or consent under
or departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Pledgor in respect of the
Obligations or this Agreement.
SECTION 5.03. Survival of Agreement. All covenants, agreements,
---------------------
representations and warranties made by any Pledgor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, and the execution and delivery to the Lenders of the Notes
evidencing such Loans, regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect until this Agreement
shall terminate.
SECTION 5.04. Binding Effect; Several Agreement. This Agreement shall
---------------------------------
become effective as to any Pledgor when a counterpart hereof executed on behalf
of such Pledgor shall have been delivered to the Security Agent and a
counterpart hereof shall have been executed on behalf of the Security Agent, and
thereafter shall be binding upon such Pledgor and the Security Agent and their
respective successors and assigns, and shall inure to the benefit of such
Pledgor, the Security Agent and the other Secured Parties and their respective
successors and assigns, except that no Pledgor shall have the right to assign
its rights hereunder or any interest herein or in the Collateral except as
expressly contemplated by this Agreement or the Credit Agreement. This
Agreement shall be construed as a separate agreement with respect to each
Pledgor and may be amended, modified, supplemented, waived or released with
respect to any Pledgor without the approval of any other Pledgor and without
affecting the obligations of any other Pledgor hereunder.
SECTION 5.05. Successors and Assigns. Whenever in this Agreement any
----------------------
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and
<PAGE>
15
agreements by or on behalf of any Pledgor or the Security Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 5.06. Security Agent Appointed Attorney-in-Fact. Each of the
-----------------------------------------
Pledgors hereby appoints the Security Agent the attorney-in-fact of such Pledgor
for the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Security Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Security Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Security Agent's name or in the name of any Pledgor, to ask for, demand, sue
for, collect, receive and give acquittance for any and all moneys due or to
become due under and by virtue of any Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to such Pledgor
representing any dividend or other distribution payable in respect of the
Collateral or any part thereof or on account thereof and to give full discharge
for the same, to settle, compromise, prosecute or defend any action, claim or
proceeding with respect thereto, and to sell, assign, endorse, pledge, transfer
and make any agreement respecting, or otherwise deal with, the same; provided,
--------
however, that nothing herein contained shall be construed as requiring or
- -------
obligating the Security Agent to make any commitment or to make any inquiry as
to the nature or sufficiency of any payment received by the Security Agent, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the Security
Agent or omitted to be taken with respect to the Collateral or any part thereof
shall give rise to any defense, counterclaim or offset in favor of any Pledgor
or to any claim or action against the Security Agent or any other Secured Party.
SECTION 5.07. Security Agent's Fees and Expenses; Indemnification.
---------------------------------------------------
(a) Each of the Pledgors jointly and severally agrees to pay upon demand to the
Security Agent the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts or agents, which
the Security Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from
or other realization upon any of the
<PAGE>
16
Collateral, (iii) the exercise, enforcement or protection of any of the rights
of the Security Agent hereunder or (iv) the failure of the Pledgors to perform
or observe any of the provisions hereof.
(b) Without limitation of their indemnification obligations under the
other Loan Documents, each of the Pledgors jointly and severally agrees to
indemnify the Security Agent from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be incurred by the
Security Agent in connection with any investigative, administrative or judicial
proceeding relating hereto or to the Collateral, whether or not the Security
Agent is a party thereto; provided that the Security Agent shall not have the
--------
right to be indemnified hereunder for its own gross negligence or wilful
misconduct as determined by a court of competent jurisdiction.
(c) Any such amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents. The
provisions of this Section shall remain operative and in full force and effect
regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the Security
Agent or any Lender. All amounts due under this Section shall be payable on
written demand therefor.
SECTION 5.08. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.09. Waivers; Amendment. (a) No failure or delay of the
------------------
Security Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Security Agent hereunder
and of the Security Agent, the Agent and the Lenders under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provisions of this Agreement or any
other Loan Document or consent to any
<PAGE>
17
departure by any Pledgor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Pledgor in any case shall entitle such Pledgor
or any other Pledgor to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Security Agent and the Pledgor or Pledgors with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 10.05 of the Credit Agreement.
SECTION 5.10. Waiver of Jury Trial. Each of the parties hereto
--------------------
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby.
SECTION 5.11. Severability. In the event any one or more of the
------------
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 5.12 Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract (subject to Section 5.04),
and shall become effective as provided in Section 5.04.
SECTION 5.13. Headings. Article and Section headings used herein are
--------
for convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 5.14. Jurisdiction; Consent to Service of Process. (a) Each
-------------------------------------------
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
<PAGE>
18
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 the other Loan Documents, or for recognition or
enforcement of any judgment, 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 such New York State or, to the extent
permitted by law, in such Federal court. 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. Nothing in this Agreement shall affect any right that the
Security Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against any
Pledgor or its properties in the courts of any jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which 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 the other Loan
Documents 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) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 5.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 5.15. Termination. This Agreement and the security interests
-----------
granted hereby shall terminate when all the Obligations (other than obligations
of the Borrower under Section 9.03(b) of the Credit Agreement, or any other
indemnification provisions contained in the Loan Documents, in respect of claims
which have not then been asserted) have been indefeasibly paid in full and the
Lenders have no further commitment to lend or to issue Letters of Credit under
the Credit Agreement, at which time the Security Agent shall reassign and
deliver to the Pledgors, at the Pledgors' expense and against receipt, such of
the Collateral as shall not have been sold or otherwise applied hereunder and
shall remain held by the Security Agent hereunder, together with such documents
as the Pledgors shall reasonably request to evidence such termination and
reassignment. Any such
<PAGE>
19
reassignment and any execution and delivery of documents pursuant to this
Section shall be without recourse to or warranty by the Security Agent. Each
Subsidiary Pledgor shall automatically be released from its obligations
hereunder and the security interest granted hereby in the Collateral of such
Subsidiary Pledgor shall be automatically released in the event that all the
capital stock of such Subsidiary Pledgor shall be sold, transferred or otherwise
disposed of to a person that is not an Affiliate of the Borrower in accordance
with the terms of the Credit Agreement; provided that the Required Lenders
--------
shall have consented to such sale, transfer or other disposition and the terms
of such consent did not provide otherwise.
SECTION 5.16. Additional Pledgors. Upon execution and delivery by
-------------------
the Security Agent and a Subsidiary of an instrument in the form of Annex I
hereto, such Subsidiary shall become a Subsidiary Pledgor and Pledgor hereunder
with the same force and effect as if originally named as a Subsidiary Pledgor
and Pledgor herein. The execution and delivery of any such instrument shall not
require the consent of any Pledgor hereunder. The rights and obligations of
each Pledgor hereunder shall remain in full force and effect notwithstanding the
addition of any new Pledgor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BRYLANE, L.P.,
by VGP CORPORATION, General
Partner,
by
--------------------------
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as security
agent,
by
--------------------------
Name:
Title:
<PAGE>
EXHIBIT 10.6
SECURITY AGREEMENT dated as of April 30, 1997 among BRYLANE,
L.P., a Delaware limited partnership (the "Borrower"), the
--------
subsidiaries of the Borrower listed on Schedule I hereto and such
other subsidiaries of the Borrower as shall become parties hereto
pursuant to Section 6.16 hereof (collectively, the "Subsidiary
----------
Grantors", the Borrower and the Subsidiary Grantors being
--------
collectively called the "Grantors"); and MORGAN GUARANTY TRUST
--------
COMPANY OF NEW YORK, as security agent (in such capacity, the
"Security Agent") for the Secured Parties, as defined herein.
---------------
Reference is made to the Credit Agreement dated as of April 30, 1997
(as amended from time to time, the "Credit Agreement"), among the Borrower, the
----------------
lenders party thereto (the "Lenders"), Morgan Guaranty Trust Company of New
-------
York, as administrative agent (in such capacity, the "Administrative Agent") and
--------------------
Merrill Lynch Capital Corporation, as documentation agent (in such capacity, the
"Documentation Agent"). The Lenders have agreed to extend credit to the
-------------------
Borrower pursuant to, and subject to the terms and conditions specified in, the
Credit Agreement. The obligations of the Lenders to extend credit under the
Credit Agreement are conditioned upon, among other things, the execution and
delivery by the Grantors of a security agreement in the form hereof to secure
(a) the due and punctual payment by the Borrower of (i) the principal of and
interest on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (ii) each payment
required to be made by the Borrower under the Credit Agreement in respect of any
Letter or Letters of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral, (iii) all other monetary obligations of the Borrower to the Secured
Parties under the Credit Agreement and the other Loan Documents to which the
Borrower is or is to be a party, and (iv) each payment required to be made by
the Borrower under any Rate Protection Agreement entered into by the Borrower
with a counterparty that was a Lender at the time such Rate Protection Agreement
was entered into, (b) the due and punctual performance of all other obligations
of the Borrower under the Credit Agreement and the other Loan Documents to which
the Borrower is or is to be a party, and (c) the due and punctual payment and
performance of all
<PAGE>
2
obligations of each Subsidiary under the Loan Documents to which it is or is to
be a party (all the foregoing obligations being collectively called the
"Obligations").
-----------
Accordingly, the Grantors and the Security Agent hereby agree as
follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Terms Defined in the Credit Agreement. Terms used
--------------------------------------
herein and not otherwise defined herein shall have the meanings set forth in the
Credit Agreement.
SECTION 1.02. Definition of Certain Terms Used Herein. As used
----------------------------------------
herein, the following terms shall have the following meanings:
"Collateral" shall mean all (i) Documents, (ii) General Intangibles
----------
and (iii) Proceeds.
"Copyright License" shall mean any written agreement, now or hereafter
-----------------
in effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting any right to such Grantor under any Copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
----------
acquired by any Grantor: (i) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (ii) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule I.
"Credit Agreement" shall have the meaning assigned to such term in the
----------------
preliminary statement of this Agreement.
"Documents" shall mean all instruments, files, records, ledger sheets
---------
and documents covering or relating to any of the Collateral.
"General Intangibles" shall mean all choses in action and causes of
-------------------
action and all other assignable
<PAGE>
3
intangible personal property of any Grantor of every kind and nature (other than
accounts receivable) now owned or hereafter acquired by any Grantor, including
corporate or other business records, mailing/customer lists, contract rights
(including rights under leases, whether entered into as lessor or lessee, Rate
Protection Agreements, the Trademark Agreements, the Transaction Agreement, the
Asset Purchase Agreements and other agreements), Intellectual Property,
Partnership Interests, goodwill, registrations, franchises and tax refund
claims.
"Intellectual Property" shall mean all intellectual and similar
---------------------
property of any Grantor of every kind and nature now owned or hereafter acquired
by any Grantor, including Copyrights, Licenses, Trademarks, trade secrets,
confidential or proprietary technical and business information, know-how, show-
how or other data or information, software and databases and all embodiments or
fixations thereof and related documentation, registrations and franchises, and
all additions, improvements and accessions to, and books and records describing
or used in connection with, any of the foregoing.
"License" shall mean any Trademark License, Copyright License or other
-------
license or sublicense to which any Grantor is a party, including those listed on
Schedule III.
"Obligations" shall have the meaning assigned to such term in the
-----------
preliminary statement of this Agreement.
"Partnership Interests" shall mean any interest of any Grantor in any
---------------------
general or limited partnership, whether as a general partner or limited partner,
and all rights of such Grantor in respect thereof, including any and all such
interests and rights of any Grantor as a partner in any Subsidiary that is a
partnership.
"Perfection Certificate" means a certificate substantially in the form
----------------------
of Exhibit H to the Credit Agreement, completed and supplemented with the
schedules and attachments contemplated thereby, and duly executed by a financial
officer of the Borrower.
"Proceeds" shall mean any consideration received from the sale,
--------
exchange, license, lease or other disposition of any asset or property which
constitutes Collateral, any value received as a consequence of the possession of
any Collateral (it being understood that "Proceeds" shall not include inventory
or other tangible personal property or any
<PAGE>
4
revenues generated by the Grantors in the ordinary course of their respective
businesses using trademarks and tradenames constituting Collateral) and any
payment received from any insurer or other person or entity as a result of the
destruction, loss, theft, damage or other involuntary conversion of whatever
nature of any asset or property which constitutes Collateral, and shall include
any claim of any Grantor against any third party for (and the right to sue and
recover for and the rights to damages or profits due or accrued arising out of
or in connection with) (i) past, present or future infringement or dilution of
any Trademark now or hereafter owned by any Grantor or licensed under a
Trademark License or injury to the goodwill associated with or symbolized by any
Trademark now or hereafter owned by any Grantor, (ii) past, present or future
breach of any License, (iii) past, present or future infringement of any
Copyright now or hereafter owned by any Grantor or licensed under a Copyright
License, and (iv) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral.
"Secured Parties" shall mean (a) the Lenders party to the Credit
---------------
Agreement, (b) each counterparty to a Rate Protection Agreement entered into
with the Borrower, if such counterparty was a Lender at the time such Rate
Protection Agreement was entered into, (c) the Agent, the Security Agent, the
Documentation Agent and the Issuing Banks, in their capacities as such under
each Loan Document, (d) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Loan Document, and (e) the successors and
assigns of the foregoing.
"Security Interest" shall have the meaning assigned to such term in
-----------------
Section 2.01.
"Trademark License" shall mean any written agreement (including the
-----------------
Trademark Agreements), now or hereafter in effect, (a) granting to any third
party any right to use any Trademark now or hereafter owned by any Grantor or
which such Grantor otherwise has the right to license, and all rights of such
Grantor under any such agreement, or (b) granting to such Grantor any right to
use any Trademark now or hereafter owned by any third party, and all rights of
such Grantor under any such agreement.
"Trademarks" shall mean all of the following now owned or hereafter
----------
acquired (including acquisition of rights in respect thereof pursuant to a
Trademark License) by any Grantor: (i) all trademarks, service marks, trade
names, corporate names, company names, business names, fictitious
<PAGE>
5
business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith, including
registrations and registration applications in the United States Patent and
Trademark Office, any State of the United States or any similar offices in any
other country or any political subdivision thereof, and all extensions or
renewals thereof, including those listed on Schedule IV, (ii) all goodwill
associated therewith or symbolized thereby, and (iii) all other assets, rights
and interests that uniquely reflect or embody such goodwill.
ARTICLE II. SECURITY INTEREST
SECTION 2.01. Security Interest. As security for the payment or
------------------
performance, as the case may be, of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Security Agent, its successors and its assigns, for the
benefit of the Secured Parties, and hereby grants to the Security Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest in, all of such Grantor's right, title and interest in, to and under
the Collateral (the "Security Interest"). Without limiting the generality of
-----------------
the foregoing, the Borrower hereby assigns, as collateral security, to the
Security Agent all its right, title and interest in, to and under the
Acquisition Agreements, the Trademark Agreements and the Transaction Agreement
(which assignment also shall constitute part of the Security Interest). The
Security Agent is hereby authorized to file one or more financing statements,
continuation statements, filings with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any similar
office in any other country) or other documents for the purpose of perfecting,
confirming, continuing, enforcing or protecting the Security Interest granted by
each Grantor, without the signature of any Grantor, naming any Grantor or the
Grantors as debtors and the Security Agent as secured party.
Anything in this Section 2.01 to the contrary notwithstanding, no
Grantor shall be deemed to have borrowed, sold, conveyed, assigned, set over,
mortgaged, pledged, hypothecated or transferred, or to have granted a security
interest in, any contract right (including any
<PAGE>
6
lease), or in any of such Grantor's right, title or interest therein, thereto or
thereunder, if any such action, without the consent of a third party thereto,
would constitute a breach or other contravention thereof; provided that the
foregoing shall not apply to the Acquisitions Agreements, the Trademark
Agreements (except for the agreements referred to in clause (ii) of the
definition thereof), the Transaction Agreement or the partnership agreement of
any partnership that is a Subsidiary. The Grantors shall use their best efforts,
upon the request of the Security Agent, to obtain the consent of any such third
party required with respect to any contract right which is material,
individually or in the aggregate, to the business, condition or prospects of any
Grantor.
The Grantors agree at all times to keep accurate and complete
accounting records with respect to the Collateral, including a record of all
payments and Proceeds received.
SECTION 2.02. No Assumption of Liability. The Security Interest is
---------------------------
granted as security only and shall not subject the Security Agent or any Secured
Party to, or in any way alter or modify, any obligation or liability of any
Grantor with respect to or arising out of any of the Collateral.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Grantors jointly and severally represent and warrant to the
Security Agent and the Lenders that:
SECTION 3.01. Title and Authority. Each of the Grantors has good and
--------------------
valid rights in and title to the Collateral with respect to which it has
purported to grant a Security Interest hereunder (other than Trademarks which
are not, individually or in the aggregate, material to any Grantor's business,
condition or prospects) and has full power and authority to grant to the
Security Agent the Security Interest in such Collateral pursuant hereto and to
execute, deliver and perform its obligations in accordance with the terms of
this Agreement, without the consent or approval of any other person other than
any consent or approval which has been obtained.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
--------
prepared, completed and executed and the information set forth therein is
correct and complete. Fully executed Uniform Commercial Code financing
<PAGE>
7
statements or other appropriate filings, recordings or registrations containing
a description of the Collateral have been delivered to the Security Agent for
filing in each governmental, municipal or other office specified in Schedule 5
to the Perfection Certificate, which are all the filings, recordings and
registrations (other than filings, required to be made in the United States
Patent and Trademark Office and the United States Copyright Office in order to
perfect the Security Interest in Collateral consisting of United States
registered trademarks and registered copyrights) that are necessary to publish
notice of and protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Security Agent (for the benefit of
the Secured Parties) in respect of all Collateral in which the Security Interest
may be perfected by filing, recording or registration in the United States (or
any political subdivision thereof) and its territories and possessions, and no
further or subsequent filing, refiling, recording, rerecording, registration in
the United States (or any political subdivision thereof) and its territories and
possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements.
(b) Each Grantor shall ensure and warrants that fully executed
security agreements in the form hereof and containing a description of all
Collateral consisting of Intellectual Property shall have been received and
delivered for recording within one month after the execution of this Agreement
with respect to United States registered Trademarks (and Trademarks for which
United States registration applications are pending) and within one month after
the execution of this Agreement with respect to United States registered
Copyrights by the United States Patent and Trademark Office and the United
States Copyright Office pursuant to 15 U.S.C. (S) 1060 or 17 U.S.C. (S) 205 and
the regulations thereunder, as applicable, to protect the validity of and to
establish a legal, valid and perfected security interest in favor of the
Security Agent (for the benefit of the Secured Parties) in respect of all
Collateral consisting of Licenses, Trademarks and Copyrights in which a security
interest may be perfected by filing, recording or registration in the United
States (or any political subdivision thereof) and its territories and
possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary (other than such
actions as are necessary to perfect the Security Interest with respect to any
Collateral consisting
<PAGE>
8
of Licenses, Trademarks and Copyrights (or registration or application for
registration thereof) acquired or developed after the date hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
------------------------------
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
any political subdivision thereof) and its territories and possessions pursuant
to the Uniform Commercial Code or other applicable law in such jurisdictions,
and (c) a security interest that shall be perfected in all Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable, within the one-month period (commencing
as of the date hereof) pursuant to 15 U.S.C. (S) 1060 or the one-month period
(commencing as of the date hereof) pursuant to 17 U.S.C. (S) 205. The Security
Interest is and shall be prior to any other Lien on any of the Collateral, other
than Liens that the Credit Agreement expressly permits to be prior to the
Security Interest.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
-----------------------
Grantors free and clear of any Lien, except for Liens expressly permitted by the
Credit Agreement. Other than as contemplated hereby, none of the Grantors has
filed or consented to the filing of (a) any financing statement or analogous
document under the Uniform Commercial Code or any other applicable laws covering
any Collateral, (b) any assignment in which any Grantor assigns any Collateral
or any security agreement or similar instrument covering any Collateral with
the United States Patent and Trademark Office or the United States Copyright
Office or (c) any assignment in which any Grantor assigns any Collateral or any
security agreement or similar instrument covering any Collateral with any
foreign governmental, municipal or other office.
<PAGE>
9
ARTICLE IV. COVENANTS
SECTION 4.01. Change of Name; Location of Collateral; Records; Place
-------------------------------------------------------
of Business. (a) Each of the Grantors agrees promptly to notify the Security
- ------------
Agent of any change (i) in its corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of its chief executive office, its principal
place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility) or
(iii) in its identity or corporate structure.
SECTION 4.02. Periodic Certification. Within 45 days after the
-----------------------
Effective Date, the Borrower shall deliver to the Security Agent a certificate
executed by a financial officer and the chief legal officer of the Borrower
setting forth, with respect to each filing, recording or registration
contemplated by Section 3.02, the filing office, date and file number thereof
and attaching true, correct and complete acknowledgment copies of each such
filing, recording or registration. Each year, at the time of delivery of annual
financial statements with respect to the preceding fiscal year pursuant to
Section 5.01 of the Credit Agreement, the Borrower shall deliver to the Security
Agent a certificate executed by a financial officer and the chief legal officer
of the Borrower (a) setting forth the information with respect to the Grantors
required pursuant to Section 2 of the Perfection Certificate, (b) certifying
that all Uniform Commercial Code financing statements or other appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (a) above to the extent necessary to
protect and perfect the Security Interest for a period of not less than 18
months after the date of such certificate, (c) setting forth, with respect to
each filing, recording or registration (including each refiling, rerecording or
reregistration) made since the date of the Perfection Certificate or the most
recent certificate delivered pursuant to this Section, the filing office, date
and file number thereof, and (d) attaching true, correct and complete
acknowledgement copies of each such filing, recording or registration not
theretofore delivered to the Security Agent.
<PAGE>
10
SECTION 4.03. Protection of Security. Each of the Grantors shall, at
-----------------------
its own cost and expense, take any and all actions necessary to defend title to
the Collateral against all persons and to defend the Security Interest of the
Security Agent in the Collateral and the priority thereof against any Lien not
expressly permitted under the Credit Agreement.
SECTION 4.04. Further Assurances. Each of the Grantors agrees, at
-------------------
its expense, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and documents and take all such actions as the
Security Agent or any of the Lenders may from time to time request to better
assure, preserve, protect and perfect the Security Interest and the rights and
remedies created hereby, including the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting of
the Security Interest and the filing of any financing statements or other
documents in connection herewith. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory note
or other instrument, such note or instrument shall be immediately pledged and
delivered to the Security Agent, duly endorsed in a manner satisfactory to the
Security Agent.
Without limiting the generality of the foregoing, each Grantor hereby
agrees, promptly upon receipt of notice from the Security Agent, to supplement
this Agreement by supplementing Schedule I, II or III hereto or adding
additional schedules hereto to specifically identify any asset or item that
constitutes Copyrights, Licenses, or Trademarks. Each Grantor agrees that it
will use its best efforts to take such action as shall be necessary in order
that all representations and warranties hereunder shall be true and correct with
respect to such Collateral within 30 days after the date it has been notified by
the Security Agent of the specific identification of such Collateral.
SECTION 4.05. Taxes; Encumbrances. At its option, the Security Agent
--------------------
may discharge past due taxes, assessments, charges, fees, liens, security
interests or other encumbrances at any time levied or placed on the Collateral
and not permitted under the Credit Agreement, and may pay for the maintenance
and preservation of the Collateral to the extent any of the Grantors fails to
do so as required by the Credit Agreement or this Agreement, and each of the
Grantors jointly and severally agrees to reimburse the Security Agent on demand
for any payment made or any expense incurred by the Security Agent pursuant to
the
<PAGE>
11
foregoing authorization; provided, however, that nothing in this Section
-------- -------
shall be interpreted as excusing any Grantor from the performance of, or
imposing any obligation on the Security Agent or any Secured Party to cure or
perform, any covenants or other promises of any Grantor with respect to taxes,
assessments, charges, fees, liens, security interests or other encumbrances and
maintenance as set forth herein or in the Credit Agreement.
SECTION 4.06. Continuing Obligations of the Grantors. Each of the
---------------------------------------
Grantors shall remain liable to observe and perform all the conditions and
obligations to be observed and performed by it under each contract, agreement or
instrument relating to the Collateral, all in accordance with the terms and
conditions thereof, and the Grantors jointly and severally agree to indemnify
and hold harmless the Security Agent and the Secured Parties from and against
any and all liability for such performance.
SECTION 4.07. Use and Disposition of Collateral. None of the Grantors
----------------------------------
shall make or permit to be made an assignment, pledge or hypothecation of the
Collateral or shall grant any other Lien in respect of the Collateral except as
expressly permitted by the Credit Agreement. None of the Grantors shall make or
permit to be made any transfer of the Collateral and each Grantor shall remain
at all times in possession of the Collateral owned by it, except that unless and
until the Security Agent shall notify the Grantors that an Event of Default
shall have occurred and be continuing and that during the continuance thereof
the Grantors shall not sell, convey, lease, assign, transfer or otherwise
dispose of any Collateral (which notice may be given by telephone if promptly
confirmed in writing), the Grantors may use and dispose of the Collateral in any
lawful manner not inconsistent with the provisions of this Agreement, the
Credit Agreement or any other Loan Document.
SECTION 4.08. Covenants Regarding License, Trademark and Copyright
----------------------------------------------------
Collateral. (a) Each Grantor (either itself or through its licensees or its
- -----------
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark, (iii) display such Trademark with notice
of federal or foreign registration to the extent necessary and sufficient to
establish and preserve its maximum rights under applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
<PAGE>
12
(b) Each Grantor (either itself or through licensees) will, for each
work covered by a material Copyright, continue to publish, reproduce, display,
adopt and distribute the work with appropriate copyright notice as necessary and
sufficient to establish and preserve its maximum rights under applicable
copyright laws.
(c) Each Grantor shall notify the Security Agent immediately if it
knows or has reason to know that any Trademark or Copyright material to the
conduct of its business may become abandoned, lost or dedicated to the public,
or of any adverse determination or development (including the institution of, or
any such determination or development in, any proceeding in the United States
Patent and Trademark Office, United States Copyright Office or any court or
similar office of any country) regarding such Grantor's ownership of any
Trademark or Copyright, its right to register the same, or to keep and maintain
the same.
(d) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for any Trademark or
Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, unless it promptly (or, in
the case of Trademarks and Copyrights which are not, individually or in the
aggregate, material to any Grantor's business, condition or prospects, no less
frequently than on a quarterly basis) informs the Security Agent, and, upon
request of the Security Agent, executes and delivers any and all agreements,
instruments, documents and papers as the Security Agent may request to evidence
the Security Agent's security interest in such Trademark or Copyright, and each
Grantor hereby appoints the Security Agent as its attorney-in-fact to execute
and file such writings for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed; such power, being coupled with an interest,
is irrevocable.
(e) Each Grantor will take all reasonably necessary steps that are
consistent with the practice in any proceeding before the United States Patent
and Trademark Office, United States Copyright Office or any office or agency in
any political subdivision of the United States or in any other country or any
political subdivision thereof, to maintain and pursue each material application
relating to the Trademarks and/or Copyrights (and to obtain the relevant grant
or registration) and to maintain each registration of
<PAGE>
13
the Trademarks and Copyrights which is material to the conduct of any Grantor's
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference and
cancelation proceedings against third parties.
(f) In the event that any Collateral consisting of a Trademark or
Copyright material to the conduct of any Grantor's business is believed
infringed, misappropriated or diluted by a third party, such Grantor promptly
shall notify the Security Agent after it obtains knowledge thereof and shall, if
consistent with good business judgment, promptly sue for infringement,
misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution (or, in the event any third party is
contractually entitled to maintain any such suit, such Grantor shall pursue all
its available remedies, including, if applicable, by demanding such third party
to commence such suit and pursue such recovery), and take such other actions as
are appropriate under the circumstances to protect such Collateral.
(g) Each Grantor shall use its best efforts to obtain all requisite
consents or approvals by the licensor of each Copyright License or Trademark
License to effect the assignment of all of the Grantors' right, title and
interest thereunder to the Security Agent or its designee.
ARTICLE V. REMEDIES
SECTION 5.01. Remedies upon Default. Upon the occurrence and during
----------------------
the continuance of an Event of Default, each of the Grantors agrees to deliver
each item of Collateral to the Security Agent on demand, and it is agreed that
the Security Agent shall have the right (subject to applicable law) to take any
of or all the following actions at the same or different times: on demand, to
cause the Security Interest to become an assignment, transfer and conveyance of
any of or all such Collateral by the applicable Grantors to the Security Agent,
or to license or, to the extent permitted by applicable law, sublicense, whether
general, special or otherwise, and whether on an exclusive or non-exclusive
basis, any such Collateral throughout the world on such terms and conditions and
in such manner as the Security Agent shall determine (other than in violation of
the Trademark Agreements or any other then-existing licensing arrangements to
the extent that
<PAGE>
14
waivers have not been obtained in the Trademark Collateral Agreement or cannot
otherwise be obtained), and with or without legal process and with or without
previous notice or demand for performance, to exercise any and all rights
afforded to a secured party under the Uniform Commercial Code or other
applicable law. Without limiting the generality of the foregoing, each of the
Grantors agrees that the Security Agent shall have the right, subject to the
mandatory requirements of current law, to sell, assign or otherwise dispose of
all or any part of the Collateral, at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as the Security Agent shall deem appropriate. The Security Agent shall
be authorized at any such sale (if it deems it advisable to do so) to restrict
the prospective bidders or purchasers to persons who will represent and agree
that they are purchasing the Collateral for their own account for investment and
not with a view to the distribution or sale thereof, and upon consummation of
any such sale the Security Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of any of the Grantors, and each of the Grantors
hereby waives (to the extent permitted by law) all rights of redemption, stay
and appraisal which such Grantor now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted.
The Security Agent shall give the Grantors 10 days' written notice
(which each of the Grantors agrees is reasonable notice within the meaning of
Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions) of the Security Agent's intention
to make any sale of Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Collateral, or portion thereof,
will first be offered for sale at such board or exchange. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Security Agent may fix and state in the notice (if any)
of such sale. At any such sale, the Collateral, or portion thereof, to be sold
may be sold in one lot as an entirety or in separate parcels, as the Security
Agent may (in its sole and absolute discretion) determine. The Security Agent
shall not be obligated to make any sale of any Collateral if
<PAGE>
15
it shall determine not to do so, regardless of the fact that notice of sale of
such Collateral shall have been given. The Security Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Security Agent until the sale price is paid by the purchaser
or purchasers thereof, but the Security Agent shall not incur any liability in
case any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public sale made pursuant to this Section, any
Secured Party may bid for or purchase, free (to the extent permitted by law)
from any right of redemption, stay, valuation or appraisal on the part of any of
the Grantors (all said rights being also hereby waived and released to the
extent permitted by law), the Collateral or any part thereof offered for sale
and may make payment on account thereof by using any claim then due and payable
to such Secured Party from any of the Grantors as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any of the
Grantors therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the
Security Agent shall be free to carry out such sale pursuant to such agreement
and none of the Grantors shall be entitled to the return of the Collateral or
any portion thereof subject thereto, notwithstanding the fact that after the
Security Agent shall have entered into such an agreement all Events of Default
shall have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Security Agent may
proceed by a suit or suits at law or in equity to foreclose this Agreement and
to sell the Collateral or any portion thereof pursuant to a judgment or decree
of a court or courts having competent jurisdiction or pursuant to a proceeding
by a court-appointed receiver.
SECTION 5.02. Application of Proceeds. The Security Agent shall
------------------------
apply the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, as follows:
<PAGE>
16
FIRST, to the payment of all costs and expenses incurred by the Agent
or the Security Agent (in its capacity as such hereunder or under any other
Loan Document) in connection with such collection or sale or otherwise in
connection with this Agreement or any of the Obligations, including all
court costs and the fees and expenses of its agents and legal counsel, the
repayment of all advances made by the Security Agent hereunder or under any
other Loan Document on behalf of any of the Grantors and any other costs or
expenses incurred in connection with the exercise of any right or remedy
hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Security Agent shall have absolute discretion as to the time of application
of any such proceeds, moneys or balances in accordance with this Agreement.
Upon any sale of the Collateral by the Security Agent (including pursuant to a
power of sale granted by statute or under a judicial proceeding), the receipt of
the Security Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Security Agent or such officer or be
answerable in any way for the misapplication thereof.
SECTION 5.03. Grant of License to Use Intellectual Property. For the
----------------------------------------------
purpose of enabling the Security Agent to exercise rights and remedies under
this Article at such time as the Security Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Security
Agent an irrevocable, non-exclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sub-license
any of the Collateral now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license reasonable
access to all media in which any of the licensed items may be recorded or stored
and to all computer software and programs used for the compilation or printout
thereof (other than in violation
<PAGE>
17
of any Trademark Agreements or any other then-existing licensing arrangements to
the extent that waivers have not been obtained in the Trademark Collateral
Agreement or cannot otherwise be obtained). The use of such license by the
Security Agent shall be exercised, at the option of the Security Agent, upon the
occurrence and during the continuation of an Event of Default; provided that any
--------
license, sub-license or other transaction entered into by the Security Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
ARTICLE VI. MISCELLANEOUS
SECTION 6.01. Notices. All communications and notices hereunder
--------
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 9.01 of the Credit Agreement. All communications and
notices hereunder to any Subsidiary Grantor shall be given to it in care of the
Borrower at the address specified in the Credit Agreement for notices to the
Borrower thereunder.
SECTION 6.02. Security Interest Absolute. All rights of the Security
---------------------------
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Credit Agreement or any other Loan Document,
any agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing; (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or instrument;
(c) any exchange, release or non-perfection of any Lien on other collateral, or
any release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations; or (d) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Obligations or this Agreement.
SECTION 6.03. Survival of Agreement. All covenants, agreements,
----------------------
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and
<PAGE>
18
shall survive the making by the Lenders of the Loans, and the execution and
delivery to the Lenders of the Notes evidencing such Loans, regardless of any
investigation made by the Lenders or on their behalf, and shall continue in full
force and effect until this Agreement shall terminate.
SECTION 6.04. Binding Effect; Several Agreement. This Agreement shall
----------------------------------
become effective as to any Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Security Agent and a
counterpart hereof shall have been executed on behalf of the Security Agent, and
thereafter shall be binding upon such Grantor and the Security Agent and their
respective successors and assigns, and shall inure to the benefit of such
Grantor, the Security Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign
its rights hereunder or any interest herein or in the Collateral except as
expressly contemplated by this Agreement or the Credit Agreement. This
Agreement shall be construed as a separate agreement with respect to each
Grantor and may be amended, modified, supplemented, waived or released with
respect to any Grantor without the approval of any other Grantor and without
affecting the obligations of any other Grantor hereunder.
SECTION 6.05. Successors and Assigns. Whenever in this Agreement any
-----------------------
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of any Grantor or the Security Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 6.06. Security Agent Appointed Attorney-in-Fact. Each of the
------------------------------------------
Grantors hereby appoints the Security Agent the attorney-in-fact of such Grantor
for the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Security Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Security Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Security Agent's name or in the name of any Grantor, to ask for, demand, sue
for, collect, receive and give acquittance for any and all moneys due or to
become due under and by virtue of any Collateral, to endorse checks, drafts,
orders
<PAGE>
19
and other instruments for the payment of money payable to such Grantor
representing any dividend or other distribution payable in respect of the
Collateral or any part thereof or on account thereof and to give full discharge
for the same, to settle, compromise, prosecute or defend any action, claim or
proceeding with respect thereto, and to sell, assign, endorse, pledge, transfer
and make any agreement respecting, or otherwise deal with, the same; provided,
--------
however, that nothing herein contained shall be construed as requiring or
- -------
obligating the Security Agent to make any commitment or to make any inquiry as
to the nature or sufficiency of any payment received by the Security Agent, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the Security
Agent or omitted to be taken with respect to the Collateral or any part thereof
shall give rise to any defense, counterclaim or offset in favor of any Grantor
or to any claim or action against the Security Agent or any other Secured Party.
SECTION 6.07. Security Agent's Fees and Expenses; Indemnification.
----------------------------------------------------
(a) Each of the Grantors jointly and severally agrees to pay upon demand to the
Security Agent the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts or agents, which
the Security Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from
or other realization upon any of the Collateral, (iii) the exercise, enforcement
or protection of any of the rights of the Security Agent hereunder or (iv) the
failure of the Grantors to perform or observe any of the provisions hereof.
(b) Without limitation of their indemnification obligations under the
other Loan Documents, each of the Pledgors jointly and severally agrees to
indemnify the Security Agent from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be incurred by the
Security Agent in connection with any investigative, administrative or judicial
proceeding relating hereto or to the Collateral, whether or not the Security
Agent is a party thereto; provided that the Security Agent shall not have the
--------
right to be indemnified hereunder for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
<PAGE>
20
(c) Any such amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents. The
provisions of this Section shall remain operative and in full force and effect
regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the Security
Agent or any Bank. All amounts due under this Section shall be payable on
written demand therefor.
SECTION 6.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
--------------
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.09. Waivers; Amendment. (a) No failure or delay of the
-------------------
Security Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Security Agent hereunder
and of the Security Agent, the Agent and the Lenders under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provisions of this Agreement or any
other Loan Document or consent to any departure by any Grantor therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Grantor in any case shall entitle such Grantor or any other Grantor to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Security Agent and the Grantor or Grantors with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 9.05 of the Credit Agreement.
SECTION 6.10. Waiver of Jury Trial. Each of the parties hereto
---------------------
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or
<PAGE>
21
relating to this Agreement or any other Loan Document or the transactions
contemplated hereby.
SECTION 6.11. Severability. In the event any one or more of the
-------------
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 6.12 Counterparts. This Agreement may be executed in two or
-------------
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract (subject to Section 6.04),
and shall become effective as provided in Section 6.04.
SECTION 6.13. Headings. Article and Section headings used herein are
---------
for convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 6.14. Jurisdiction; Consent to Service of Process. (a) Each
--------------------------------------------
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive 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 the other Loan Documents, or for recognition or
enforcement of any judgment, 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 such New York State or, to the extent
permitted by law, in such Federal court. 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. Nothing in this Agreement shall affect any right that the
Security Agent or any Bank may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Grantor or
its properties in the courts of any jurisdiction.
<PAGE>
22
(b) Each Grantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which 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 the other Loan
Documents 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) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 6.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 6.15. Termination. This Agreement and the Security Interest
------------
shall terminate when all the Obligations (other than obligations of the Borrower
under Section 9.03(b) of the Credit Agreement, or any other indemnification
provisions contained in the Loan Documents, in respect of claims which have not
then been asserted) have been indefeasibly paid in full and the Lenders have no
further commitment to lend or to issue Letters of Credit under the Credit
Agreement, at which time the Security Agent shall execute and deliver to the
Grantors, at the Grantors' expense, all Uniform Commercial Code termination
statements and similar customary documents which the Grantors shall reasonably
request to evidence such termination. Any execution and delivery of termination
statements or documents pursuant to this Section shall be without recourse to or
warranty by the Security Agent. Each Subsidiary Grantor shall automatically be
released from its obligations hereunder and the Security Interest in the
Collateral of such Subsidiary Grantor shall be automatically released in the
event that all the capital stock of such Subsidiary Grantor shall be sold,
transferred or otherwise disposed of to a person that is not an Affiliate of the
Borrower in accordance with the terms of the Credit Agreement; provided that the
--------
Required Lenders shall have consented to such sale, transfer or other
disposition and the terms of such consent did not provide otherwise.
SECTION 6.16. Additional Grantors. Upon execution and delivery by
--------------------
the Security Agent and a Subsidiary of an instrument in the form of Annex 1
hereto, such Subsidiary shall become a Subsidiary Grantor and Grantor hereunder
with the same force and effect as if originally named as a Subsidiary Grantor
and Grantor herein.
<PAGE>
23
The execution and delivery of any such instrument shall not require the consent
of any Grantor hereunder. The rights and obligations of each Grantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Grantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BRYLANE, L.P,
by VGP CORPORATION, General Partner
by
-------------------------------------
Name:
Title:
B.L. CATALOG DISTRIBUTION, INC.,
by
-------------------------------------
Name:
Title:
<PAGE>
24
B.L. CATALOG DISTRIBUTION
PARTNERSHIP,
by B.L. CATALOG DISTRIBUTION
INC., General Partner,
by
--------------------------
Name:
Title:
by BRYLANE, L.P., General
Partner
by VGP CORPORATION, General
Partner
by
-------------------------
Name:
Title:
B.L. MANAGEMENT SERVICES, INC.,
by
-----------------------------
Name:
Title:
<PAGE>
25
B.L. MANAGEMENT SERVICES
PARTNERSHIP,
by B.L. MANAGEMENT SERVICES
INC., General Partner,
by
----------------------------
Name:
Title:
by B.N.Y. SERVICE CORP., General
Partner,
by
----------------------------
Name:
Title:
B.N.Y. SERVICE CORP.
by
-----------------------------
Name:
Title:
K.S. MANAGEMENT SERVICES, INC.
by
-----------------------------
Name:
Title:
<PAGE>
26
C.O.B. MANAGEMENT SERVICES, INC.
by
-----------------------------
Name:
Title:
CHADWICK'S TRADENAME SUB, INC.
by
-----------------------------
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK,
as Security Agent,
by
-----------------------------
Title:
<PAGE>
EXHIBIT 10.7
TRADEMARK COLLATERAL AGREEMENT dated as of April 30, 1997,
among LANCO, INC., a Delaware corporation ("Lanco"), LERNCO,
-----
INC., a Delaware corporation ("Lernco"), LIMITED STORES, INC., a
------
Delaware corporation ("Limited Stores"), LERNER STORES, INC., a
--------------
Delaware corporation ("Lerner Stores"), LANE BRYANT, INC., a
Delaware corporation ("Lane Bryant" and, together with Lanco,
-----------
Lernco, Limited Stores and Lerner Stores, the "Licensors"), M&P
---------
DISTRIBUTING CO., a Nevada corporation, and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as security agent (in such capacity, the
"Security Agent") for the lenders (the "Lenders") party to the
-------------- -------
Credit Agreement dated as of April 30, 1997 (as the same may be
amended from time to time, the "Credit Agreement"), among
----------------
BRYLANE, L.P., a Delaware limited partnership (the "Borrower"),
--------
the Lenders, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
administrative agent (the "Agent") and MERRILL LYNCH CAPITAL
-----
CORPORATION, as documentation agent (the "Documentation Agent").
-------------------
The Security Agent, the Lenders, the Agent, the Documentation
Agent and the Issuing Banks (as defined in the Credit Agreement)
are hereinafter called the "Secured Parties".
---------------
Preliminary Statement
---------------------
The Licensors and M&P Distributing Co., which is the successor by
merger to Lane Bryant Direct Holding, Inc., a Delaware corporation, which, in
turn, is the successor by merger to Lane Bryant Direct, Inc. and Lerner Direct
Holding, Inc., which, in turn, is the successor by merger to Lerner Direct, Inc.
("M&P" or the "Licensee"), are parties to a Trademark License Agreement dated as
--- --------
of August 20, 1993 (as amended from time to time, and as specifically amended by
Amendment No. 1 to the Trademark License Agreement, dated as of December 9,
1996, the "License Agreement"). The rights of the Licensee under the License
-----------------
Agreement were assigned to the Borrower pursuant to the Transaction Agreement
dated as of July 13, 1993 (as amended from time to time, the "Transaction
-----------
Agreement") pursuant to the execution by Borrower of an Agreement To Be Bound
- ---------
substantially in the form of Appendix II to the License Agreement. The Secured
<PAGE>
2
Parties have made and/or may make, pursuant to the Credit Agreement or
otherwise, one or more loans, advances and/or other financial accommodations to
the Borrower (the "Obligations"), to be guaranteed by subsidiaries of the
-----------
Borrower and secured in whole or in part pursuant to one or more agreements,
instruments and other documents (as the same may be amended from time to time,
the "Security Documents") granting security interests in and liens on certain
------------------
assets of the Borrower and its subsidiaries. The assets of the Borrower to be
assigned and pledged under the Security Documents will include the rights of the
Borrower under the License Agreement (the "Trademark Collateral"). The
--------------------
obligations of the Lenders to extend credit under the Credit Agreement are
conditioned upon, among other things, the execution and delivery by the parties
hereto of an agreement in the form hereof.
Accordingly, the parties hereto agree as follows:
1. Acknowledgment. (a) The Licensors and The Limited, Inc. ("The
-------------- ---
Limited") hereby acknowledge and consent to the assignment, pledge, transfer and
- -------
grant to the Security Agent of a continuing security interest in, and a lien
upon, the Trademark Collateral in the manner and for the purposes provided in
the Security Documents. The Licensors and The Limited also acknowledge receipt
of copies of the Security Documents and, subject to the terms of this Agreement,
hereby consent to all of the terms and provisions of the Security Documents
relating to the Trademark Collateral and to the exercise by the Security Agent
of the rights, remedies, powers and privileges granted to the Security Agent
under the Security Documents relating to the Trademark Collateral in accordance
with the terms thereof as now or at any time hereafter in effect.
(b) The Licensors and The Limited agree that, in the event of a
foreclosure by the Security Agent of its security interest in the Trademark
Collateral (or an outright assignment by the Borrower in lieu of foreclosure)
(any of the foregoing events, a "Foreclosure Event"), the Security Agent or any
-----------------
third party that acquires rights in the Trademark Collateral shall become, and
shall have all the rights and interests of, the Licensee under the License
Agreement (a "Successor Licensee"), without any requirement for any consent or
------------------
other action by any Licensor or The Limited; provided that the Security Agent or
--------
such third party shall execute an Agreement To Be Bound substantially in the
form of Appendix II to the License Agreement; and provided further that such
----------------
Agreement To Be Bound shall not require the Security Agent or such third party
to assume,
<PAGE>
3
and the Security Agent or such third party shall not be bound by, any liability
or obligation in respect of events occurring prior to the Security Agent or such
third party becoming a Successor Licensee, including, without limitation, any
liability for a breach of the License Agreement by the Borrower occurring while
the Borrower was the Licensee.
2. Termination Provisions. (a) Except as otherwise provided in this
----------------------
Section 2, (i) the provisions of Section 6.1(a) of the License Agreement shall
not be affected by the granting by the Borrower to the Security Agent of a
security interest in the Trademark Collateral and (ii) the exercise by the
Security Agent of any right, remedy, power or privilege under the Security
Documents shall be subject to the provisions of Section 6.1(a) of the License
Agreement.
(b) Notwithstanding anything to the contrary set forth in the License
Agreement (and except as provided in Section 2(c) hereof), the original 20-year
term of the License Agreement and each License granted thereunder, as specified
in clause (i) of Section 6.1(a) of the License Agreement, shall not be affected
by any event specified in clause (ii), (iii) or (iv) of Section 6.1(a) of the
License Agreement, unless such event occurs prior to the occurrence of a
Foreclosure Event and without causing any Default or Event of Default (each as
defined in the Credit Agreement) under the Credit Agreement as such Credit
Agreement is now in effect.
(c) Notwithstanding paragraph (b) above, upon and after the
occurrence of a Foreclosure Event, the early termination provisions set forth in
clause (iii) of Section 6.1(a) of the License Agreement shall apply if the
Successor Licensee is or (by virtue of an acquisition, merger, consolidation or
other business combination or otherwise) becomes a person or entity which
competes with any retail or catalogue business conducted by The Limited or any
of its affiliates on the date hereof, determined as provided in the Trademark
Agreement.
(d) Notwithstanding anything to the contrary set forth in the License
Agreement (and except as otherwise provided in Section 2(e) hereof), The Limited
shall not exercise its right to terminate the License Agreement or any License
granted thereunder pursuant to clause (3) of Section 6.1(b) of the License
Agreement, unless the Obligations have been finally and indefeasibly paid in
full and a Foreclosure Event shall not have occurred.
<PAGE>
4
(e) Following the occurrence of a Foreclosure Event, the License
Agreement or any License granted thereunder may be terminated by The Limited in
the event of the occurrence with respect to any Successor Licensee of an event
of the type specified in clause (3) of Section 6.1(b) of the License Agreement.
(f) The Limited agrees that (i) it shall deliver to the Security
Agent a copy of any notice or other communication to the Borrower regarding any
breach or alleged breach by the Borrower of its obligations under the License
Agreement promptly after delivery of such notice to the Borrower, (ii) if after
the expiration of the 30-day period referred to in clause (2) of Section 6.1(b)
of the License Agreement, any breach by the Borrower remains uncured, The
Limited shall not exercise its right under clause (2) of Section 6.1(b) of the
License Agreement to terminate the License Agreement or any License granted
thereunder without (A) giving written notice to the Security Agent (a "Breach
------
Notice") after the expiration of such 30-day period of the Borrower's failure
- ------
to cure the breach within such period and The Limited's desire to terminate the
License Agreement if such breach is not cured and (B) giving the Security Agent
and the Lenders at least 60 days after the delivery of such Breach Notice to
effect a cure of the breach or to initiate a Foreclosure Event, (iii) if the
Security Agent or the Lenders initiate foreclosure proceedings in respect of a
Foreclosure Event within the 60-day period referred to in clause (ii) above and
give the Licensors notice of such proceedings, The Limited shall not exercise
its right under clause (2) of Section 6.1(b) of the License Agreement to
terminate the License Agreement or any License granted thereunder so long as
proceedings in respect of such Foreclosure Event are being diligently pursued to
the extent allowed by law and (iv) from and after the occurrence of any
Foreclosure Event, The Limited shall not exercise its right under clause (2) of
Section 6.1(b) of the License Agreement to terminate the License Agreement or
any License granted thereunder based on any breach arising prior to the
occurrence of such Foreclosure Event or as a result of such Foreclosure Event.
(g) Notwithstanding the provisions of Section 2(f) hereof, The
Limited shall be entitled to terminate the License Agreement or any License
granted thereunder pursuant to clause (2) of Section 6.1(b) of the License
Agreement in the event of a breach by any Successor Licensee of any of its
material obligations under the License Agreement arising after the occurrence of
a Foreclosure Event, if any such breach remains uncured 30
<PAGE>
5
days after written notice thereof to the Successor Licensee by The Limited.
3. Enforceability of Rights of the Licensee. By reason of the
----------------------------------------
Security Documents, all of the rights of the Licensee to enforce the obligations
of the Licensors and The Limited under the License Agreement may be exercised by
the Security Agent directly against the Licensors or The Limited, as the case
may be, if an Event of Default (as defined in the Credit Agreement as such
Credit Agreement is now in effect) shall occur and be continuing.
4. Successors and Assigns. This Agreement shall be binding upon the
----------------------
successors and assigns of the Licensors and The Limited and shall inure to the
benefit of and be enforceable by the Secured Parties, the Security Agent and its
successors and assigns, including any Successor Licensee. This Agreement is for
the sole benefit of the parties hereto, their permitted assigns and the Secured
Parties, and nothing herein expressed or implied shall give or be construed to
give to the Borrower any legal or equitable rights hereunder.
5. Amendments; Modifications; Notices. So long as any Security
----------------------------------
Document remains in effect, neither The Limited nor any Licensor shall enter
into any amendment, modification or waiver in respect of the License Agreement
(other than such amendments, modifications and waivers that do not adversely
affect the interests of the Borrower or the Secured Parties) without the prior
written consent of the Security Agent. No amendment, modification or waiver of
any provision of this Agreement, nor consent to any departure by The Limited or
any Licensor therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Security Agent, The Limited and the Licensors and
then such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
6. No Waiver; Cumulative Remedies. No failure on the part of the
------------------------------
Security Agent to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy by the Security Agent
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All rights, powers and remedies of the Security Agent
hereunder are cumulative and are not exclusive of any other rights, powers and
remedies of the Security Agent provided by law.
<PAGE>
6
7. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto on separate counterparts, each of which
when executed and delivered shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument.
8. Notices. All notices or other communications required or
-------
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by telecopy or sent, postage prepaid, by registered, certified or
express mail or reputable overnight courier service and shall be deemed given
when so delivered by hand or telecopied, or if mailed, three days after mailing
(one business day in the case of express mail or overnight courier service), as
follows:
(i) if to any Licensor or The Limited,
The Limited, Inc.
Three Limited Parkway
Columbus, Ohio 43230
Attention: General Counsel
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: David Caplan, Esq.; and
(ii) if to the Security Agent,
Morgan Guaranty Trust Company of New York
902 Market Street
Wilmington, Delaware 19801
Attention:
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: James C. Vardell, III.
<PAGE>
7
9. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
--------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. Survival. The provisions hereof shall be irrevocable and remain
--------
in full force and effect until the Obligations have been finally and
indefeasibly paid in full and the Borrower has fully performed all of its
obligations to the Secured Parties under and in accordance with the terms of all
present and future agreements, instruments and documents evidencing the
Obligations and all present and future Security Documents (in each case
including any extensions, modifications and renewals thereof or substitutions
therefor at any time made), and until all obligations, if any, of the Secured
Parties to extend loans, advances, or financial accommodations to the Borrower
shall have been terminated; provided that if, prior to termination of this
--------
Agreement as provided above, a Foreclosure Event occurs, the provisions hereof
shall remain in full force and effect for the term of the License Agreement.
11. Miscellaneous. The Limited and the Licensors agree to make this
-------------
Agreement known to any transferee of any Mark (as defined in the License
Agreement) and any person or entity which may have an interest or right in any
Mark. In the event of a transfer of any Mark, The Limited will cause the
transferee to agree to be bound by the terms of this Agreement and will notify
the Security Agent of such transfer. The Limited and the Licensors acknowledge
and agree that the provisions set forth in this Agreement are, and are intended
to be, an inducement and consideration to each Secured Party to make, or to
permit to remain outstanding, loans, advances and/or financial accommodations to
the Borrower, and each Secured Party shall be deemed conclusively to have relied
upon such provisions in making, or permitting to remain outstanding, such loans,
advances and/or financial accommodations, and each Secured Party is made an
obligee hereunder and may enforce directly the provisions hereof.
<PAGE>
8
IN WITNESS WHEREOF, the parties have caused this Trademark Collateral
Agreement to be executed and delivered by their respective officers thereunto
duly authorized as of the day and year first above written.
LANCO, INC.,
by
---------------------------
Name:
Title:
LERNCO, INC.,
by
---------------------------
Name:
Title:
LIMITED STORES, INC.,
by
---------------------------
Name:
Title:
LERNER STORES, INC.,
by
---------------------------
Name:
Title:
LANE BRYANT, INC.,
by
---------------------------
Name:
Title:
M&P DISTRIBUTING CO.,
by
---------------------------
Name:
Title:
<PAGE>
9
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Security
Agent,
by
---------------------------
Name:
Title:
Acknowledged and agreed to as of April 30, 1997, as to those portions of this
Agreement granting rights to, or imposing obligations on, The Limited, Inc.:
THE LIMITED, INC.,
by
_____________________
Name:
Title:
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-START> FEB-02-1997
<PERIOD-END> MAY-03-1997
<CASH> 34,978
<SECURITIES> 0
<RECEIVABLES> 52,276
<ALLOWANCES> 3,168
<INVENTORY> 159,264
<CURRENT-ASSETS> 284,071
<PP&E> 138,887
<DEPRECIATION> 63,029
<TOTAL-ASSETS> 722,372
<CURRENT-LIABILITIES> 198,737
<BONDS> 0
0
1,500
<COMMON> 195
<OTHER-SE> 214,020
<TOTAL-LIABILITY-AND-EQUITY> 722,372
<SALES> 328,801
<TOTAL-REVENUES> 328,801
<CGS> 169,047
<TOTAL-COSTS> 169,047
<OTHER-EXPENSES> 133,419
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,528
<INCOME-PRETAX> 16,075
<INCOME-TAX> 6,489
<INCOME-CONTINUING> 9,586
<DISCONTINUED> 0
<EXTRAORDINARY> 4,110
<CHANGES> 0
<NET-INCOME> 5,476
<EPS-PRIMARY> .29
<EPS-DILUTED> .29
</TABLE>
