EXHIBIT 10.1
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is made on June 6, 2003, by and among TROPICAL
SPORTSWEAR INT'L CORPORATION, a Florida corporation (individually and, in its capacity as the representative of
the other Borrowers pursuant to Section 3.4 hereof, "Tropical"), TROPICAL SPORTSWEAR COMPANY, INC., a Delaware
corporation ("TSCI"), SAVANE INTERNATIONAL CORP., a Texas corporation ("Savane"), APPAREL NETWORK CORPORATION, a
Florida corporation ("Apparel"), TSI BRANDS, INC., a Delaware corporation ("TSI"), TSIL, INC., a Delaware
corporation ("TSIL"), DUCK HEAD APPAREL COMPANY, LLC, a Georgia limited liability company ("Duck Head"), and
DELTA MERCHANDISING, INC., a South Carolina corporation ("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL,
Duck Head and Delta collectively referred to hereinafter as "Borrowers" and individually as a "Borrower"), each
with its chief executive office and principal place of business at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx
00000-0000; the various financial institutions listed on the signature pages hereof and their respective
successors and permitted assigns which become "Lenders" as provided herein; and FLEET CAPITAL CORPORATION, a
Rhode Island corporation with an office at 000 Xxxxxxxx Xxxxxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, in its
capacity as collateral and administrative agent for the Lenders pursuant to Section 12 hereof (together with its
successors in such capacity, "Agent"). Capitalized terms used in this Agreement have the meanings assigned to
them in Appendix A, General Definitions.
R e c i t a l s:
Borrowers, Agent and certain financial institutions ("Original Lenders") are parties to a certain Loan
and Security Agreement dated June 10, 1998 (as at any time amended or modified, the "Original Loan Agreement"),
pursuant to which Original Lenders made certain revolving credit loans and letter of credit accommodations to
Borrowers. Borrowers have requested that Agent and Lenders amend and restate the Original Loan Agreement to
provide additional financing to Borrowers. Agent and Lenders are willing to amend and restate the Original Loan
Agreement on the terms set forth herein.
Each Borrower has requested that Lenders make available a revolving credit facility to Borrowers, which
shall be used by Borrowers to finance their mutual and collective enterprise of manufacturing and distributing
apparel. In order to utilize the financial powers of each Borrower in the most efficient and economical manner,
and in order to facilitate the financing of each Borrower's needs, Lenders will, at the request of any Borrower,
make loans to all Borrowers under the revolving credit facility on a combined basis and in accordance with the
provisions hereinafter set forth. Borrowers' business is a mutual and collective enterprise and Borrowers
believe that the consolidation of all revolving credit loans under this Agreement will enhance the aggregate
borrowing powers of each Borrower and ease the administration of their revolving credit loan relationship with
Lenders, all to the mutual advantage of Borrowers. Lenders' willingness to extend credit to Borrowers and to
administer each Borrower's collateral security therefor, on a combined basis as more fully set forth in this
Agreement, is done solely as an accommodation to Borrowers and at Borrowers' request in furtherance of Borrowers'
mutual and collective enterprise.
Each Borrower has agreed to guarantee the obligations of each of the other Borrowers under this
Agreement and each of the other Loan Documents.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration, the parties hereto
hereby agree as follows:
Section 1. CREDIT FACILITIES
Subject to the terms and conditions of, and in reliance upon the representations and warranties made in,
this Agreement and the other Loan Documents, Lenders severally agree to the extent and in the manner hereinafter
set forth to make their respective Pro Rata shares of the Commitments available to Borrower, in an aggregate
amount up to $95,000,000, as follows:
1.1. Revolver Commitment.
1.1.1. Revolver Loans. Each Lender agrees, severally to the extent of its Revolver Commitment and not jointly
with the other Lenders, upon the terms and subject to the conditions set forth herein, to make Revolver Loans to
Borrowers on any Business Day during the period from the date hereof through the Business Day before the last day
of the Term, not to exceed in aggregate principal amount outstanding at any time such Lender's Revolver
Commitment at such time, which Revolver Loans may be repaid and reborrowed in accordance with the provisions of
this Agreement; provided, however, that Lenders shall have no obligation to Borrowers whatsoever to make any
Revolver Loan on or after the Commitment Termination Date or if at the time of the proposed funding thereof the
aggregate principal amount of all of the Revolver Loans and Pending Revolver Loans then outstanding exceeds, or
would exceed after the funding of such Revolver Loan, the Borrowing Base. Each Borrowing of Revolver Loans shall
be funded by Lenders on a Pro Rata basis in accordance with their respective Revolver Commitments (except for
Fleet with respect to Settlement Loans). The Revolver Loans shall bear interest as set forth in Section 2.1.
hereof. Each Revolver Loan shall, at the option of Borrowers, be made or continued as, or converted into, part
of one or more Borrowings that, unless specifically provided herein, shall consist entirely of Base Rate Loans or
LIBOR Loans.
1.1.2. Out-of-Formula Loans. If the unpaid balance of Revolver Loans outstanding at any time should exceed the
Borrowing Base at such time (an "Out-of-Formula Condition"), such Revolver Loans shall nevertheless constitute
Obligations that are secured by the Collateral and entitled to all of the benefits of the Loan Documents. In the
event that Lenders are willing in their sole and absolute discretion to make Out-of-Formula Loans or are required
to do so by Sections 1.1.6 or 12.9.4 hereof, such Out-of-Formula Loans shall be payable on demand and shall bear
interest as provided in Section 2.1.5 of this Agreement.
1.1.3. Use of Proceeds. The proceeds of the Revolver Loans shall be used by Borrowers solely for one or more
of the following purposes: (i) to pay the fees and transaction expenses associated with the closing of the
transactions described herein; (ii) to pay any of the Obligations; (iii) to make expenditures for other lawful
corporate purposes of Borrowers to the extent such expenditures are not prohibited by this Agreement or
Applicable Law; and (iv) at any time after the Closing Date, for so long as the Senior Subordinated Note
Repurchase Conditions are satisfied, to repurchase or redeem additional Senior Subordinated Notes. In no event
may any Revolver Loan proceeds be used by any Borrower to make a contribution to the equity of any Subsidiary, to
purchase or to carry, or to reduce, retire or refinance any Debt incurred to purchase or carry, any Margin Stock
or for any related purpose that violates the provisions of Regulations T, U or X of the Board of Governors.
1.1.4. Revolver Notes. The Revolver Loans made by each Lender and interest accruing thereon shall be evidenced
by the records of Agent and such Lender and by the Revolver Note payable to such Lender (or the assignee of such
Lender), which shall be executed by Borrowers, completed in conformity with this Agreement and delivered to such
Lender. All outstanding principal amounts and accrued interest under the Revolver Notes shall be due and payable
as set forth in Section 4.2 hereof.
1.1.5. Reserved.
1.1.6. Agent Advances. Agent shall be authorized by Borrowers and Lenders, from time to time in Agent's sole
and absolute discretion, at any time that a Default or Event of Default exists or any of the conditions precedent
set forth in Section 10 hereof have not been satisfied, to make Base Rate Loans to Borrowers on behalf of Lenders
in an aggregate amount outstanding at any time not to exceed 5% of the Borrowing Base, but (a) not in excess of
the aggregate of the Commitments, and (b) only to the extent that Agent deems the funding of such Base Rate Loans
to be necessary or desirable (i) to preserve or protect the Collateral or any portion thereof, (ii) to enhance
the likelihood of or the amount of repayment of the Obligations or (iii) to pay any other amount chargeable to
Borrowers pursuant to the terms of this Agreement, including costs, fees and expenses, all of which Base Rate
Loans advanced by Agent shall be deemed part of the Obligations and secured by the Collateral, shall be treated
as Settlement Loans and shall be settled and paid by Borrowers and Lenders as provided herein for Settlement
Loans; provided, however, that the Required Lenders may at any time revoke Agent's authorization to make any such
Base Rate Loans by written notice to Agent, which shall become effective upon and after Agent's receipt thereof.
1.2. Reserved.
1.3. LC Facility.
1.3.1. Procurement of Letters of Credit. Subject to all of the terms and conditions hereof, Fleet agrees to
establish the LC Facility pursuant to which, during the period from the date hereof to (but excluding) the 30th
day prior to the last day of the Term, Fleet shall procure from Bank one or more Letters of Credit on Borrowers'
request therefor from time to time, subject to the following terms and conditions:
(i) Each Borrower acknowledges that Bank's willingness to issue any Letter of
Credit is conditioned upon Bank's receipt of (A) the LC Support duly executed and delivered to Bank by
Fleet, (B) an LC Application with respect to the requested Letter of Credit and (C) such other
instruments and agreements as Bank may customarily require for the issuance of a letter of credit of
equivalent type and amount as the requested Letter of Credit. Fleet shall have no obligation to execute
any LC Support or to join with any Borrower in executing an LC Application unless (x) Fleet receives an
LC Request from such Borrower at least 5 Business Days prior to the date on which Borrower desires to
submit such LC Application to Bank and (y) each of the LC Conditions is satisfied on the date of Fleet's
receipt of the LC Request and at the time of the requested execution of the LC Application. In no event
shall Fleet or any other Lender have any liability or obligation to any or all Borrowers or any
Subsidiary for any failure or refusal by Bank to issue, for Bank's delay in issuing, or for any error of
Bank in issuing any Letter of Credit.
(ii) Letters of Credit may be requested by a Borrower only if they are to be used
(a) to support obligations of Borrower incurred in the Ordinary Course of Business of such Borrower, or
(b) for such other purposes as Agent and Lenders may approve from time to time in writing.
(iii) Borrowers shall comply with all of the terms and conditions imposed on
Borrowers by Bank, whether such terms and conditions are contained in an LC Application or in any
agreement with respect thereto, and subject to the rights of Bank, Fleet shall have the same rights and
remedies that Bank has under any agreements that Borrowers may have with Bank in addition to any rights
and remedies contained in any of the Loan Documents. Borrowers jointly and severally agree to reimburse
Bank for any draw under any Letter of Credit as hereinafter provided, and to pay Bank the amount of all
other liabilities and obligations payable to Bank under or in connection with any Letter of Credit
immediately when due, irrespective of any claim, setoff, defense or other right that any or all
Borrowers may have at any time against Bank or any other Person. If Fleet shall pay any amount under a
LC Support with respect to any Letter of Credit, then Borrowers shall be jointly and severally obligated
to pay to Fleet, in Dollars on the first Business Day following the date on which payment was made by
Fleet under such LC Support (the "Reimbursement Date"), an amount equal to the amount paid by Lender
under such LC Support (or, if payment thereunder was made by Fleet in a currency other than Dollars, an
amount equal to the Dollar Equivalent of such currency at the time of Fleet's payment under such LC
Support, in each case) together with interest from and after the Reimbursement Date until payment in
full is made by Borrowers at the Default Rate for Revolver Loans constituting Base Rate Loans. Until
Fleet has received payment from Borrowers in accordance with the foregoing provisions of this clause
(iii), Fleet, in addition to all of its other rights and remedies under this Agreement, shall be fully
subrogated to (A) the rights and remedies of Bank as issuer of the Letter of Credit under any agreement
with Borrowers relating to the issuance of such Letter of Credit, and (B) the rights and remedies of
each beneficiary under such Letter of Credit whose claims against Borrowers have been discharged with
the proceeds of such Letter of Credit. Whether or not a Borrower submits any Notice of Borrowing to
Agent, Borrowers shall be deemed to have requested from Lenders a Borrowing of Base Rate Loans in an
amount necessary to pay to Fleet all amounts due Fleet on any Reimbursement Date and each Lender agrees
to fund its Pro Rata share of such Borrowing whether or not any Default or Event of Default has occurred
or exists, the Commitments have been terminated, the funding of the Borrowing deemed requested by
Borrowers would result in, or increase the amount of, any Out-of-Formula Condition, or any of the
conditions set forth in Section 10 hereof are not satisfied.
(iv) Borrowers assume all risks of the acts, omissions or misuses of any Letter of
Credit by the beneficiary thereof. The obligation of Borrowers to reimburse Fleet for any payment made
by Fleet under the LC Support shall be absolute, unconditional, irrevocable and joint and several and
shall be paid without regard to any lack of validity or enforceability of any Letter of Credit, the
existence of any claim, setoff, defense or other right which Borrowers may have at any time against a
beneficiary of any Letter of Credit, or improper honor by Bank of any draw request under a Letter of
Credit. If presentation of a demand, draft, certificate or other document does not comply with the
terms of a Letter of Credit and Borrowers contend that, as a consequence of such noncompliance it has
no obligation to reimburse Bank for any payment made with respect thereto, Borrowers shall nevertheless
be obligated to reimburse Fleet for any payment made under the LC Support with respect to such Letter of
Credit, but without waiving any claim Borrowers may have against Bank in connection therewith. All
disputes regarding any Letter of Credit shall be resolved by Borrowers directly with Bank.
(v) No Letter of Credit shall be extended or amended in any respect that is not
solely ministerial, unless all of the LC Conditions are met as though a new Letter of Credit were being
requested and issued. With respect to any Letter of Credit that contains any "evergreen" or automatic
renewal provision, each Lender shall be deemed to have consented to any such extension or renewal,
unless any such Lender shall have provided to Agent written notice that it declines to consent to any
such extension or renewal at least 30 days prior to the date on which the issuer of the Letter of Credit
is entitled to decline to extend or renew the Letter of Credit. If all of the LC Conditions are met and
no Default or Event of Default exists, no Lender shall have the right to decline to consent to any such
extension or renewal.
(vi) Each Borrower hereby authorizes and directs Bank to deliver to Fleet
all instruments, documents and other writings and Property received by Bank pursuant to or in connection
with any Letter of Credit and to accept and rely upon Fleet's instructions and agreements with respect
to all matters arising in connection with such Letter of Credit and the related LC Application.
1.3.2. Participations.
(i) Immediately upon the issuance by Bank of any Letter of Credit, each Lender
(other than Fleet) shall be deemed to have irrevocably and unconditionally purchased and received from
Fleet, without recourse or warranty, an undivided interest and participation equal to the Pro Rata share
of such Lender (a "Participating Lender") in all LC Outstandings arising in connection with such Letter
of Credit and any security therefor or guaranty pertaining thereto, but in no event greater than an
amount which, when added to such Lender's Pro Rata share of all Revolver Loans and LC Outstandings then
outstanding, exceeds such Lender's Revolver Commitment; provided, however that if Fleet shall have
received written notice from a Lender on or before the Business Day immediately prior to the date of
Bank's issuance issue of a Letter of Credit that one or more of the conditions set forth in Section 10
or Section 1.3.1 has not been satisfied, Fleet shall have no obligation to procure, and shall not
procure, the requested Letter of Credit or any other Letter of Credit until such notice is withdrawn in
writing by that Lender or until the Required Lender shall have effectively waived such condition in
accordance with this Agreement. In no event shall Fleet be deemed to have notice or knowledge of the
existence of any Default or any Event of Default or the failure of any conditions in Sections 10 or
1.3.1 hereof to be satisfied prior to its receipt of such notice from a Lender.
(ii) If Fleet makes any payment under an LC Support and Borrowers do not repay or
cause to be repaid the amount of such payment on the Reimbursement Date, Fleet shall promptly notify
Agent, which shall promptly notify each Participating Lender, of such payment and each Participating
Lender shall promptly (and in any event within 1 Business Day after its receipt of notice from Agent)
and unconditionally pay to Agent, for the account of Fleet, in immediately available funds, the amount
of such Participating Lender's Pro Rata share of such payment, and Agent shall promptly pay such amounts
to Fleet. If a Participating Lender does not make its Pro Rata share of the amount of such payment
available to Agent on a timely basis as herein provided, such Participating Lender agrees to pay to
Agent for the account of Fleet, forthwith on demand, such amount together with interest thereon at the
Federal Funds Rate until paid. The failure of any Participating Lender to make available to Agent for
the account of Fleet such Participating Lender's Pro Rata share of the LC Outstandings shall not relieve
any other Participating Lender of its obligation hereunder to make available to Agent its Pro Rata share
of the LC Outstandings, but no Participating Lender shall be responsible for the failure of any other
Participating Lender to make available to Agent its Pro Rata share of the LC Outstandings on the date
such payment is to be made.
(iii) Whenever Fleet receives a payment on account of the LC Outstandings, including
any interest thereon, as to which Agent has previously received payments from any Participating Lender
for the account of Fleet, Fleet shall promptly pay to each Participating Lender which has funded
its participating interest therein, in immediately available funds, an amount equal to such Participating
Lender's Pro Rata share thereof.
(iv) The obligation of each Participating Lender to make payments to Agent for the
account of Fleet in connection with Fleet's payment under a LC Support shall be absolute, unconditional
and irrevocable, not subject to any counterclaim, setoff, qualification or exception whatsoever, and
shall be made in accordance with the terms and conditions of this Agreement under all circumstances and
irrespective of whether or not Borrowers may assert or have any claim for any lack of validity or
unenforceability of this Agreement or any of the other Loan Documents; the existence of any Default or
Event of Default; any draft, certificate or other document presented under a Letter of Credit having
been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; the existence of any setoff or defense any Obligor
may have with respect to any of the Obligations; or the termination of the Commitments.
(v) Neither Fleet nor any of its officers, directors, employees or agents shall be
liable to any Participating Lender for any action taken or omitted to be taken under or in connection
with any of the LC Documents except as a result of actual gross negligence or willful misconduct on the
part of Fleet. Fleet does not assume any responsibility for any failure or delay in performance or
breach by Borrowers or any other Person of any of its obligations under any of the LC Documents. Fleet
does not make to Participating Lenders any express or implied warranty, representation or guaranty with
respect to the Collateral, the LC Documents, or any Obligor. Fleet shall not be responsible to any
Participating Lender for any recitals, statements, information, representations or warranties contained
in, or for the execution, validity, genuineness, effectiveness or enforceability of or any of the LC
Documents; the validity, genuineness, enforceability, collectibility, value or sufficiency of any of the
Collateral or the perfection of any Lien therein; or the assets, liabilities, financial condition,
results of operations, business, creditworthiness or legal status of any Borrower or any other Obligor
or any Account Debtor. In connection with its administration of and enforcement of rights or remedies
under any of the LC Documents, Fleet shall be entitled to act, and shall be fully protected in acting
upon, any certification, notice or other communication in whatever form believed by Fleet, in good
faith, to be genuine and correct and to have been signed, sent or made by a proper Person. Fleet may
consult with and employ legal counsel, accountants and other experts and to advise it concerning its
rights, powers and privileges under the LC Documents and shall be entitled to act upon, and shall be
fully protected in any action taken in good faith reliance upon, any advice given by such experts.
Fleet may employ agents and attorneys-in-fact in connection with any matter relating to the LC Documents
and shall not be liable for the negligence, default or misconduct of any such agents or
attorneys-in-fact selected by Fleet with reasonable care. Fleet shall not have any liability to any
Participating Lender by reason of Fleet's refraining to take any action under any of the LC Documents
without having first received written instructions from the Required Lenders to take such action.
(vi) Upon the request of any Participating Lender, Fleet shall furnish to such
Participating Lender copies (to the extent then available to Fleet) of each outstanding Letter of Credit
and related LC Application and all other documentation pertaining to such Letter of Credit as may be in
the possession of Fleet and reasonably requested from time to time by such Participating Lender.
1.3.3. Cash Collateral Account. If any LC Outstandings, whether or not then due or payable, shall for any
reason be outstanding (i) at any time when an Event of Default has occurred and is continuing, (ii) on any date
that Availability is less than zero, or (iii) on or at any time after the Commitment Termination Date, then
Borrowers shall, on Fleet's or Agent's request, forthwith deposit with Agent, in cash, an amount equal to 105% of
the aggregate amount of LC Outstandings. If Borrowers fail to make such deposit on the first Business Day
following Agent's or Fleet's demand therefor, Lenders may (and shall upon direction of the Required Lenders)
advance such amount as Revolver Loans (whether or not an Out-of-Formula Condition is created thereby). Such cash
(together with any interest accrued thereon) shall be held by Agent in the Cash Collateral Account and may be
invested, in Agent's discretion, in Cash Equivalents. Each Borrower hereby pledges to Agent and grants to Agent
a security interest in, for the benefit of Agent in such capacity and for the Pro Rata benefit of Lenders, all
Cash Collateral held in the Cash Collateral Account from time to time and all proceeds thereof, as security for
the payment of all Obligations, whether or not then due or payable. From time to time after cash is deposited in
the Cash Collateral Account, Agent may apply Cash Collateral then held in the Cash Collateral Account to
the payment of any amounts, in such order as Agent may elect, as shall be or shall become due and payable by
Borrowers to Agent or any Lender with respect to the LC Obligations. Neither any Borrower nor any other Person
claiming by, through or under or on behalf of Borrowers shall have any right to withdraw any of the
Cash Collateral held in the Cash Collateral Account, including any accrued interest, provided that upon
termination or expiration of all Letters of Credit and the payment and satisfaction of all of the
LC Outstandings, any Cash Collateral remaining in the Cash Collateral Account shall be returned to Borrowers
unless an Event of Default then exists (in which event Agent may apply such Cash Collateral to the payment of any
other Obligations outstanding, with any surplus to be turned over to Borrowers).
1.3.4. Indemnifications.
(i) In addition to any other indemnity which Borrowers may have to Agent or any
Lender under any of the other Loan Documents and without limiting such other indemnification provisions,
each Borrower hereby agrees to indemnify and defend each of the Agent Indemnitees and Lender Indemnitees
and to hold each of the Agent Indemnitees and Lender Indemnitees harmless from and against any and all
Indemnified Claims which any of the Agent Indemnitees or any of the Lender Indemnitees may (other than
as the actual result of their own gross negligence or willful misconduct) incur or be subject to as a
consequence, directly or indirectly, of (a) the issuance of, payment or failure to pay or any
performance or failure to perform under any Letter of Credit or LC Support or (b) any suit,
investigation or proceeding as to which Agent or any Lender is or may become a party to as a
consequence, directly or indirectly, of the issuance of any Letter of Credit or any LC Support or the
payment or failure to pay thereunder.
(ii) Each Participating Lender agrees to indemnify and defend each of the Fleet
Indemnitees (to the extent the Fleet Indemnitees are not reimbursed by Borrowers or any other Obligor,
but without limiting the indemnification obligations of Borrowers under this Agreement), on a Pro Rata
basis, from and against any and all Indemnified Claims which may be imposed on, incurred by or asserted
against any of the Fleet Indemnitees in any way related to or arising out of Fleet's administration or
enforcement of rights or remedies under any of the LC Documents or any of the transactions contemplated
thereby (including costs and expenses which Borrowers are obligated to pay under Section 14.2 hereof),
provided that no Participating Lender shall be liable to any of the Fleet Indemnitees for any of the
foregoing to the extent that they result solely from the willful misconduct or gross negligence of such
Fleet Indemnitees.
Section 2. INTEREST, FEES AND CHARGES
2.1. Interest.
2.1.1. Rates of Interest. Borrowers jointly and severally agree to pay interest in respect of all unpaid
principal amounts of the Revolver Loans from the respective dates such principal amounts are advanced until paid
(whether at stated maturity, on acceleration or otherwise) at a rate per annum equal to the applicable rate
indicated below:
(i) for Revolver Loans made or outstanding as Base Rate Loans, the Applicable
Margin plus the Base Rate in effect from time to time; or
(ii) for Revolver Loans made or outstanding as LIBOR Loans, the Applicable Margin
plus the relevant Adjusted LIBOR Rate for the applicable Interest Period selected by Borrower in
conformity with this Agreement.
Upon determining the Adjusted LIBOR Rate for any Interest Period requested by Borrowers, Agent
shall promptly notify Borrowers thereof by telephone and, if so requested by Borrowers, confirm the same in
writing. Such determination shall, absent manifest error, be final, conclusive and binding on all parties and
for all purposes. The applicable rate of interest for all Loans (or portions thereof) bearing interest based
upon the Base Rate shall be increased or decreased, as the case may be, by an amount equal to any increase or
decrease in the Base Rate, with such adjustments to be effective as of the opening of business on the day that
any such change in the Base Rate becomes effective. Interest on each Loan shall accrue from and including the
date on which such Loan is made, converted to a Loan of another Type or continued as a LIBOR Loan to (but
excluding) the date of any repayment thereof; provided, however, that, if a Loan is repaid on the same day made,
one day's interest shall be paid on such Loan. The Base Rate on the date hereof is 4.25% per annum and,
therefore, the rate of interest in effect hereunder on the date hereof, expressed in simple interest terms,
is 5.00% per annum with respect to any portion of the Revolver Loans bearing interest as a Base Rate Loan.
2.1.2. Conversions and Continuations.
(i) Borrowers may on any Business Day, subject to the giving of a proper Notice of
Conversion/Continuation as hereinafter described, elect (A) to continue all or any part of a LIBOR Loan
by selecting a new Interest Period therefor, to commence on the last day of the immediately preceding
Interest Period, or (B) to convert all or any part of a Loan of one Type into a Loan of another Type;
provided, however, that no outstanding Loans may be converted into or continued as LIBOR Loans at any
time any Default or Event of Default exists. Any conversion of a LIBOR Loan into a Base Rate Loan shall
be made on the last day of the Interest Period for such LIBOR Loan. Any conversion or continuation made
with respect to less than the entire outstanding balance of the Revolver Loans, shall be allocated among
Lenders on a Pro Rata basis, and the Interest Period for Loans converted into or continued as
LIBOR Loans shall be coterminous for each Lender.
(ii) Whenever Borrowers desire to convert or continue Loans under Section 2.1.2(i),
Tropical shall give Agent written notice (or telephonic notice promptly confirmed in writing)
substantially in the form of Exhibit C, signed by an authorized officer of Tropical, at least 1 Business
Day before the requested conversion date, in the case of a conversion into Base Rate Loans, and at least
2 Business Days before the requested conversion or continuation date, in the case of a conversion into
or continuation of LIBOR Loans. Promptly after receipt of a Notice of Conversion/Continuation, Agent
shall notify each Lender in writing of the proposed conversion or continuation. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify the aggregate principal amount of the
Loans to be converted or continued, the date of such conversion or continuation (which shall be a
Business Day) and whether the Loans are being converted into or continued as LIBOR Loans (and, if so,
the duration of the Interest Period to be applicable thereto and, in the absence of any specification by
Borrowers of the Interest Period, an Interest Period of one month will be deemed to be specified) or
Base Rate Loans. If, upon the expiration of any Interest Period in respect of any LIBOR Loans,
Borrowers shall have failed to deliver the Notice of Conversion/Continuation, Borrowers shall be deemed
to have elected to convert such LIBOR Loans to Base Rate Loans.
2.1.3. Interest Periods. In connection with the making or continuation of, or conversion into, each Borrowing
of LIBOR Loans, Borrowers shall select an interest period (each an "Interest Period") to be applicable to such
LIBOR Loan, which interest period shall commence on the date such LIBOR Loan is made and shall end on a
numerically corresponding day in the first, second, third or sixth month thereafter; provided, however, that:
(i) the initial Interest Period for a LIBOR Loan shall commence on the date of
such Borrowing (including the date of any conversion from a Loan of another Type) and each Interest
Period occurring thereafter in respect of such Revolver Loan shall commence on the date on which the
next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day, provided that, if any
Interest Period in respect of LIBOR Loans would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
(iii) any Interest Period that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period shall expire on
the last Business Day of such calendar month; and
(iv) no Interest Period shall extend beyond the last day of the Term.
2.1.4. Interest Rate Not Ascertainable. If Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) that on any date for determining the Adjusted LIBOR
Rate for any Interest Period, by reason of any changes arising after the date of this Agreement affecting the
London interbank market or any Lender's or Bank's position in such market, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis provided for in the definition of Adjusted LIBOR Rate,
then, and in any such event, Agent shall forthwith give notice (by telephone confirmed in writing) to Borrowers
of such determination. Until Agent notifies Borrowers that the circumstances giving rise to the suspension
described herein no longer exist, the obligation of Lenders to make LIBOR Loans shall be suspended, and such
affected Loans then outstanding shall, at the end of the then applicable Interest Period or at such earlier time
as may be required by Applicable Law, bear the same interest as Base Rate Loans.
2.1.5. Default Rate of Interest. Borrowers shall pay interest at a rate per annum equal to the Default Rate
(i) with respect to the principal amount of any portion of the Obligations (and, to the extent permitted by
Applicable Law, all past due interest) that is not paid on the due date thereof (whether due at stated maturity,
on demand, upon acceleration or otherwise) until paid in full; (ii) with respect to the principal amount of all
of the Obligations (and, to the extent permitted by Applicable Law, all past due interest) upon the earlier to
occur of (x) Borrower's receipt of notice from Agent of the Required Lenders' election to charge the Default Rate
based upon the existence of any Event of Default (which notice Agent shall send only with the consent or at the
direction of the Required Lenders), whether or not acceleration or demand for payment of the Obligations has been
made, or (y) the commencement by or against any Borrower of an Insolvency Proceeding whether or not under the
circumstances described in clauses (i) or (ii) hereof Lender elects to accelerate the maturity or demand payment
of any of the Obligations; and (iii) with respect to the principal amount of any Out-of-Formula Loans, whether or
not demand for payment thereof has been made by Agent. To the fullest extent permitted by Applicable Law, the
Default Rate shall apply and accrue on any judgment entered with respect to any of the Obligations and to the
unpaid principal amount of the Obligations during any Insolvency Proceeding of a Borrower. Each Borrower
acknowledges that the cost and expense to Agent and each Lender attendant upon the occurrence of an Event of
Default are difficult to ascertain or estimate and that the Default Rate is a fair and reasonable estimate to
compensate Agent and Lender for such added cost and expense. Interest accrued at the Default Rate shall be due
and payable on demand.
2.2. Fees. In consideration of Lenders' establishment of the Commitments in favor of Borrowers, and Agent's
agreement to serve as collateral and administrative agent hereunder, Borrowers jointly and severally agree to pay
the following fees:
2.2.1. Closing Fee. Borrowers shall be jointly and severally obligated to pay to Agent, for the Pro Rata
benefit of the Initial Lenders, a closing fee of $356,250, which shall be paid on the Closing Date.
2.2.2. Unused Line Fee. Borrowers shall be jointly and severally obligated to pay to Agent for the Pro Rata
benefit of Lenders a fee equal to 0.375% per annum of the amount by which the Average Revolver Loan Balance for
any month (or portion thereof that the Commitments are in effect) is less than the aggregate amount of the
Revolver Commitments, such fee to be paid on the first day of the following month; but if the Commitments are
terminated on a day other than the first day of a month, then any such fee payable for the month in which
termination shall occur shall be paid on the effective date of such termination.
2.2.3. LC Facility Fees. Borrowers shall be jointly and severally obligated to pay: (a) to Agent, through its
Treasury and International Services Group, for the Pro Rata account of each Lender for standby Letters of Credit,
the Applicable Margin in effect for LIBOR Loans on a per annum basis based on the average amount available to be
drawn under all standby Letters of Credit outstanding and all standby Letters of Credit that are paid or expire
during the period of measurement, due and payable upon issuance of each standby Letter of Credit, and an
additional fee equal to the Applicable Margin for LIBOR Loans, multiplied by the undrawn face amount of such
Letter of Credit payable upon each renewal thereof and each extension thereof; (b) to Agent, through its Treasury
and International Services Group, for the Pro Rata account of each Lender for documentary Letters of Credit, the
Applicable Margin in effect for LIBOR Loans minus .75% on a per annum basis based on the average amount available
to be drawn under all documentary Letters of Credit outstanding and all documentary Letters of Credit that are
paid or expire during the period of measurement, payable on each renewal or extension thereof and on the first
Business Day of each month; (c) to Agent, through its Treasury and International Services Group, for its own
account a Letter of Credit fronting fee of 0.125% per annum based on the face amount of Letters of Credit payable
on the date of issuance of any Letter of Credit; and (d) to Bank for its own account all normal and customary
charges associated with the issuance, amending, negotiating, processing and administration of Letters of Credit.
2.2.4. Audit and Appraisal Fees. Borrowers shall be jointly and severally obligated to reimburse Agent and
Lenders for all reasonable costs and expenses incurred by Agent and Lenders in connection with audits and
appraisals of any Obligor's books and records and such other matters pertaining to any Obligor or any Collateral
as Agent shall deem appropriate. Borrower shall reimburse Agent and Lenders for all reasonable costs and
expenses incurred by Agent or Lenders in connection with appraisals of any Collateral as Agent shall deem
appropriate and shall pay to Agent its standard per diem audit fee (currently $850 per day) for each day that an
employee or agent of Agent shall be engaged in an examination or review of any Borrower's books and records. On
the Closing Date, Borrowers shall be jointly and severally obligated to pay to Fleet an appraisal fee of $20,000
plus all out-of-pocket expenses incurred by Fleet or the appraiser in connection with the appraisal of Borrower's
Inventory prior to the Closing Date.2.2.5. Agency Fee. In consideration of Fleet's syndication of the
Commitments and service as Agent hereunder, Borrowers shall be jointly and severally obligated to pay to Agent an
agency fee of $50,000 per year, which fee shall be payable on the Closing Date and on the first day of each Loan
Year thereafter.
2.2.6. General Provisions. All fees shall be fully earned by the identified recipient thereof pursuant to the
foregoing provisions of this Agreement on the due date thereof (and, in the case of Letters of Credit, upon each
issuance, renewal or extension of such Letter of Credit) and, except as otherwise set forth herein or required by
Applicable Law, shall not be subject to rebate, refund or proration. All fees provided for in Section 2.2 are
and shall be deemed to be compensation for services and are not, and shall not be deemed to be, interest or any
other charge for the use, forbearance or detention of money.
2.3. Computation of Interest and Fees. All fees and other charges provided for in this Agreement that are
calculated as a per annum percentage of any amount and all interest shall be calculated daily and shall be
computed on the actual number of days elapsed over a year of 360 days. For purposes of computing interest and
other charges hereunder, all Payment Items and other forms of payment received by Agent shall be deemed applied
by Agent on account of the Obligations (subject to final payment of such items) on the Business Day that Agent
receives such items in immediately available funds in the Payment Account, and Agent shall be deemed to have
received such Payment Item on the date specified in Section 4.7 hereof.
2.4. Reimbursement Obligations.
2.4.1. Borrowers shall reimburse Agent and, during any period that an Event of Default exists, each Lender, for
all legal, accounting, appraisal and other fees and expenses incurred by Agent or any Lender in connection with
(i) the negotiation and preparation of any of the Loan Documents, any amendment or modification thereto, any
waiver of any Default or Event of Default thereunder, or any restructuring or forbearance with respect thereto;
(ii) the administration of the Loan Documents and the transactions contemplated thereby, to the extent that such
fees and expenses are expressly provided for in this Agreement or any of the other Loan Documents; (iii) action
taken to perfect or maintain the perfection or priority of any of Agent's Liens with respect to any of the
Collateral; (iv) any inspection of or audits conducted with respect to any Borrower's books and records or any of
the Collateral; (v) any effort to verify, protect, preserve, or restore any of the Collateral or to collect,
sell, liquidate or otherwise dispose of or realize upon any of the Collateral; (vi) any litigation, contest,
dispute, suit, proceeding or action (whether instituted by or against Agent, any Lender, any Obligor or any other
Person) in any way arising out of or relating to any of the Collateral (or the validity, perfection or priority
of any of Agent's Liens thereon), any of the Loan Documents or the validity, allowance or amount of any of the
Obligations; (vii) the protection or enforcement or any rights or remedies of Agent or any Lender in any
Insolvency Proceeding; and (viii) any other action taken by Agent or any Lender to enforce any of the rights or
remedies of Agent or such Lender against any Obligor or any Account Debtors to enforce collection of any of the
Obligations or payments with respect to any of the Collateral. All amounts chargeable to Borrowers under this
Section 2.4 shall constitute Obligations that are secured by all of the Collateral and shall be payable on demand
to Agent. Borrowers shall also reimburse Agent for expenses incurred by Agent in its administration of any of
the Collateral to the extent and in the manner provided in Section 7 hereof or in any of the other Loan
Documents. The foregoing shall be in addition to, and shall not be construed to limit, any other provision of
any of the Loan Documents regarding the reimbursement by Borrowers of costs, expenses or liabilities suffered or
incurred by Agent or any Lender.
2.4.2. If at any time Agent or (with the consent of Agent) any Lender shall agree to indemnify any Person
(including Bank) against losses or damages that such Person may suffer or incur in its dealings or transactions
with Borrowers, or shall guarantee any liability or obligation of Borrowers to such Person, or otherwise shall
provide assurances of Borrowers' payment or performance under any agreement with such Person, including
indemnities, guaranties or other assurances of payment or performance given by Agent or any Lender with respect
to Cash Management Agreements, Hedging Agreements and Letters of Credit, then the Contingent Obligation of Agent
or any Lender providing any such indemnity, guaranty or other assurance of payment or performance, together with
any payment made or liability incurred by Agent or any Lender in connection therewith, shall constitute
Obligations that are secured by the Collateral and Borrowers shall repay, on demand, any amount so paid or any
liability incurred by Agent or any Lender in connection with any such indemnity, guaranty or assurance, except
that repayment with respect to any LC Support shall be due on the Reimbursement Date as provided in
Section 1.3.1(iii). Nothing herein shall be construed to impose upon Agent or any Lender any obligation to
provide any such indemnity, guaranty or assurance except to the extent provided in Section 1.3 hereof. The
foregoing agreement of Borrowers shall apply whether or not such indemnity, guaranty or assurance is in writing
or oral and regardless of any Borrower's knowledge of the existence thereof, and shall be in addition to any of
the provisions of the Loan Documents regarding reimbursement by Borrowers of costs, expenses or liabilities
suffered or incurred by Agent or any Lender.
2.5. Bank Charges. Borrowers shall pay to Agent, on demand, any and all fees, costs or expenses which Agent
or any Lender pays to a bank or other similar institution (including any fees paid by Agent or any Lender to any
Participant) arising out of or in connection with (i) the forwarding to a Borrower or any other Person on behalf
of a Borrower by Agent or any Lender of proceeds of Loans made by Lenders to a Borrower pursuant to this
Agreement and (ii) the depositing for collection by Agent or any Lender of any Payment Item received or delivered
to Agent or any Lender on account of the Obligations. Each Borrower acknowledges and agrees that Agent may
charge such costs, fees and expenses to Borrowers based upon Agent's good faith estimate of such costs, fees and
expenses as they are incurred by Agent or any Lender.
2.6. Illegality. Notwithstanding anything to the contrary contained elsewhere in this Agreement, if (i) any
change in any law or regulation or in the interpretation thereof by any Governmental Authority charged with the
administration thereof shall make it unlawful for a Lender to make or maintain a LIBOR Loan or to give effect to
its obligations as contemplated hereby with respect to a LIBOR Loan or (ii) at any time such Lender determines
that the making or continuance of any LIBOR Loan has become impracticable as a result of a contingency occurring
after the date hereof which adversely affects the London interbank market or the position of such Lender in such
market, then after such determination such Lender shall give Agent and Borrowers notice thereof and may
thereafter (1) declare that LIBOR Loans will not thereafter be made by such Lender, whereupon any request by a
Borrower for a LIBOR Loan shall be deemed a request for a Base Rate Loan unless such Lender's declaration shall
be subsequently withdrawn (which declaration shall be withdrawn promptly after the cessation of the circumstances
described in clause (i) or (ii) above); and (2) require that all outstanding LIBOR Loans made by such Lender be
converted to Base Rate Loans, under the circumstances of clause (i) or (ii) of this Section 2.6 insofar as such
Lender determines the continuance of LIBOR Loans to be impracticable, in which event all such LIBOR Loans shall
be converted automatically to Base Rate Loans as of the date of Borrowers' receipt of the aforesaid notice from
such Lender.
2.7. Increased Costs. If, by reason of (a) the introduction after the date hereof of or any change
(including any change by way of imposition or increase of Statutory Reserves or other reserve requirements) in or
in the interpretation of any law or regulation, or (b) the compliance with any guideline or request from any
central bank or other Governmental Authority or quasi-Governmental Authority exercising control over banks or
financial institutions generally (whether or not having the force of law):
(i) any Lender shall be subject after the date hereof to any Tax, duty or
other charge with respect to any LIBOR Loan or its obligation to make LIBOR Loans, or a change shall
result in the basis of taxation of payment to any Lender of the principal of or interest on
its LIBOR Loans or its obligation to make LIBOR Loans (except for changes in the rate of Tax on
the overall net income or gross receipts of such Lender imposed by the jurisdiction in which
such Lender's principal executive office is located); or
(ii) any reserve (including any imposed by the Board of Governors), special
deposits or similar requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender shall be imposed or deemed applicable or any other condition affecting its LIBOR
Loans or its obligation to make LIBOR Loans shall be imposed on such Lender or the London
interbank market;
and as a result thereof there shall be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining LIBOR Loans (except to the extent already included in the determination of the applicable
Adjusted LIBOR Rate for LIBOR Loans), or there shall be a reduction in the amount received or receivable by such
Lender, then such Lender shall, promptly after determining the existence or amount of any such increased costs
for which such Lender seeks payment hereunder, give Borrowers notice thereof, and Borrowers shall from time to
time, upon written notice from and demand by such Lender (with a copy of such notice and demand to Agent), pay to
Agent for the account of such Lender, within 5 Business Days after the date specified in such notice and demand,
an additional amount sufficient to indemnify such Lender against such increased costs. A certificate as to the
amount of such increased cost, submitted to Borrowers by such Lender, shall be final, conclusive and binding for
all purposes, absent manifest error.
If any Lender shall advise Agent at any time that, because of the circumstances described hereinabove in
this Section 2.7 or any other circumstances arising after the date of this Agreement affecting such Lender or the
London interbank market or such Lender's or Bank's position in such market, the Adjusted LIBOR Rate,
as determined by Agent, will not adequately and fairly reflect the cost to such Lender of funding LIBOR Loans,
then, and in any such event:
(i) Agent shall forthwith give notice (by telephone confirmed in writing) to
Borrowers and Lenders of such event;
(ii) Borrowers' right to request and such Lender's obligation to make LIBOR Loans
shall be immediately suspended and Borrowers' right to continue a LIBOR Loan as such beyond the then
applicable Interest Period shall also be suspended, until each condition giving rise to such suspension
no longer exists; and
(iii) such Lender shall make a Base Rate Loan as part of the requested Borrowing of
LIBOR Loans, which Base Rate Loan shall, for all purposes, be considered part of such Borrowing.
For purposes of this Section 2.7, all references to a Lender shall be deemed to include any bank holding
company or bank parent of such Lender.
2.8. Capital Adequacy. If any Lender determines that after the date hereof (a) the adoption of any
Applicable Law regarding capital requirements for banks or bank holding companies or the subsidiaries thereof,
(b) any change in the interpretation or administration of any such Applicable Law by any Governmental Authority,
central bank, or comparable agency charged with the interpretation or administration thereof, or (c) compliance
by such Lender or its holding company with any request or directive of any such Governmental Authority, central
bank or comparable agency regarding capital adequacy (whether or not having the force of law), has the effect of
reducing the return on such Lender's capital to a level below that which such Lender could have achieved (taking
into consideration such Lender's and its holding company's policies with respect to capital adequacy immediately
before such adoption, change or compliance and assuming that such Lender's capital was fully utilized prior to
such adoption, change or compliance) but for such adoption, change or compliance as a consequence of such
Lender's commitment to make the Loans pursuant hereto by any amount deemed by such Lender to be material:
(i) Agent shall promptly, after its receipt of a certificate from such Lender
setting forth such Lender's determination of such occurrence, give notice thereof to Borrowers and
Lenders; and
(ii) Borrowers shall pay to Agent, for the account of such Lender, as an additional
fee from time to time, on demand, such amount as such Lender certifies to be the amount reasonably
calculated to compensate such Lender for such reduction.
A certificate of such Lender claiming entitlement to compensation as set forth above will be conclusive
in the absence of manifest error. Such certificate will set forth the nature of the occurrence giving rise to
such compensation, the additional amount or amounts to be paid to such Lender (including the basis for such
Lender's determination of such amount), and the method by which such amounts were determined. In determining
such amount, such Lender may use any reasonable averaging and attribution method. For purposes of this
Section 2.8 all references to a Lender shall be deemed to include any bank holding company or bank parent of such
Lender.
2.9. Funding Losses. If for any reason (other than due to a default by a Lender or as a result of a Lender's
refusal to honor a LIBOR Loan request due to circumstances described in Section 2.6 or 2.7 hereof) a Borrowing
of, or conversion to or continuation of, LIBOR Loans does not occur on the date specified therefor in a Notice of
Borrowing or Notice of Conversion/ Continuation (whether or not withdrawn), or if any repayment (including any
conversions pursuant to Section 2.1.2 hereof) of any of its LIBOR Loans occurs on a date that is not the last day
of an Interest Period applicable thereto, or if for any reason Borrowers default in its obligation to repay LIBOR
Loans when required by the terms of this Agreement, then Borrowers shall be jointly and severally obligated to
pay to Agent, for the ratable benefit of the affected Lenders, within 10 days after Agent's or an affected
Lender's demand therefor, an amount (if a positive number) computed pursuant to the following formula:
L = (R - T) x P x D
360
where
L = amount payable
R = interest rate applicable to the LIBOR Loan unborrowed or prepaid
T = effective interest rate per annum at which any readily marketable
bond or other obligations of the United States, selected at Agent's
sole discretion, maturing on or nearest the last day of the then
applicable or requested Interest Period for such LIBOR Loan and in
approximately the same amount as such LIBOR Loan, can be purchased by
Agent on the day of such payment of principal or failure to borrow
P = the amount of principal paid or the amount of the LIBOR Loan
requested or to have been continued or converted
D = the number of days remaining in the Interest Period as of the date of
such prepayment or the number of days in the requested Interest Period
Borrowers shall pay such amount upon presentation by Agent of a statement setting forth the amount and Agent's
calculation thereof pursuant hereto, which statement shall be deemed true and correct absent manifest error. For
purposes of this Section 2.9, all references to a Lender shall be deemed to include any bank holding company or
bank parent of such Lender.
2.10. Maximum Interest. Regardless of any provision contained in any of the Loan Documents, in no contingency
or event whatsoever shall the aggregate of all amounts that are contracted for, charged or received by Agent and
Lenders pursuant to the terms of this Agreement or any of the other Loan Documents and that are deemed interest
under Applicable Law exceed the highest rate permissible under any Applicable Law. No agreements, conditions,
provisions or stipulations contained in this Agreement or any of the other Loan Documents or the exercise by
Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the
exercise of any option whatsoever contained in any of the Loan Documents, or the prepayment by Borrowers of any
of the Obligations, or the occurrence of any contingency whatsoever, shall entitle Agent or any Lender to charge
or receive in any event, interest or any charges, amounts, premiums or fees deemed interest by Applicable Law
(such interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of
the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate; and
all agreements, conditions or stipulations, if any, which may in any event or contingency whatsoever operate to
bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or
effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. If any
Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and
stipulates that any such charge or receipt shall be the result of an accident and bona fide error, and such
Excess, to the extent received, shall be applied first to reduce the principal Obligations and the balance, if
any, returned to Borrowers, it being the intent of the parties hereto not to enter into a usurious or otherwise
illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right
to accelerate any Interest that has not otherwise accrued on the date of such acceleration, and Agent and Lenders
do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes
that, with fluctuations in the rates of interest set forth in Section 2.1.1 of this Agreement, and the Maximum
Rate, such an unintentional result could inadvertently occur. All monies paid to Agent or any Lender hereunder
or under any of the other Loan Documents, whether at maturity or by prepayment, shall be subject to any rebate of
unearned Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each
Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower
of such Excess, and (ii) such Borrower shall not seek or pursue any other remedy, legal or equitable, against
Agent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess
of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged
or received by Agent or any Lender, all Interest at any time contracted for, charged or received from Borrowers
in connection with any of the Loan Documents shall, to the extent permitted by Applicable Law, be amortized,
prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrowers, Agent and
Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment
as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects
thereof. The provisions of this Section 2.10 shall be deemed to be incorporated into every Loan Document
(whether or not any provision of this Section is referred to therein). All such Loan Documents and
communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole
purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court
considering the same, to give effect to the adjustments or credits required by this Section 2.10.
Section 3. LOAN ADMINISTRATION
3.1. Manner of Borrowing and Funding Revolver Loans. Borrowings under the Commitments established pursuant
to Section 1.1 hereof shall be made and funded as follows:
3.1.1. Notice of Borrowing.
(i) Whenever Borrowers desire to make a Borrowing under Section 1.1 of
this Agreement (other than a Borrowing resulting from a conversion or continuation pursuant to
Section 2.1.2), Borrowers shall give Agent prior written notice or electronic notice (or telephonic
notice, at Agent's request, promptly confirmed in writing) of such Borrowing request (a "Notice of
Borrowing"), which shall be in the form of Exhibit D annexed hereto and signed by an authorized officer
of Tropical. Such Notice of Borrowing shall be given by Borrowers no later than 11:00 a.m. at the
office of Agent designated by Agent from time to time (a) on the Business Day of the requested funding
date of such Borrowing, in the case of Base Rate Loans, and (b) at least 2 Business Days prior to
the requested funding date of such Borrowing, in the case of LIBOR Loans. Notices received after 11:00
a.m. shall be deemed received on the next Business Day. Each Notice of Borrowing (or telephonic notice
thereof) shall be irrevocable and shall specify (a) the principal amount of the Borrowing, (b) the date
of Borrowing (which shall be a Business Day), (c) whether the Borrowing is to consist of Base Rate Loans
or LIBOR Loans, (d) in the case of LIBOR Loans, the duration of the Interest Period to be applicable
thereto, and (e) the account of Borrowers to which the proceeds of such Borrowing are to be disbursed.
Borrowers may not request any LIBOR Loans if a Default or Event of Default exists.
(ii) Unless payment is otherwise timely made by Borrowers, the becoming due of any
amount required to be paid with respect to any of the Obligations (whether as principal, accrued
interest, fees or other charges, including the repayment of any LC Outstandings and any amounts owed to
any Affiliate of Agent) shall be deemed irrevocably to be a request (without any requirement for the
submission of a Notice of Borrowing) for Revolver Loans on the due date of, and in an aggregate amount
required to pay, such Obligations, and the proceeds of such Revolver Loans may be disbursed by way of
direct payment of the relevant Obligation and shall bear interest as Base Rate Loans. Neither Agent nor
any Lender shall have any obligation to Borrowers to honor any deemed request for a Revolver Loan on or
after the Commitment Termination Date, when an Out-of-Formula Condition exists or would result
therefrom, or when any condition precedent set forth in Section 10 hereof is not satisfied, but may do
so in the discretion of Agent (or at the direction of the Required Lenders) and without regard to the
existence of, and without being deemed to have waived, any Default or Event of Default and regardless of
whether such Revolver Loan is funded after the Commitment Termination Date.
(iii) If Borrower elects to establish a Controlled Disbursement Account with Bank or
any Affiliate of Bank, then the presentation for payment by Bank of any check or other item of payment
drawn on the Controlled Disbursement Account at a time when there are insufficient funds in such account
to cover such check shall be deemed irrevocably to be a request (without any requirement for the
submission of a Notice of Borrowing) for Revolver Loans on the date of such presentation and in an
amount equal to the aggregate amount of the items presented for payment, and the proceeds of such
Revolver Loans may be disbursed to the Controlled Disbursement Account and shall bear interest as
Base Rate Loans. Neither Agent nor any Lender shall have any obligation to honor any deemed request for
a Revolver Loan on or after the Commitment Termination Date or when an Out-of-Formula Condition exists
or would result therefrom or when any condition precedent in Section 10 hereof is not satisfied, but may
do so in the discretion of Agent (or at the direction of the Required Lenders) and without regard to the
existence of, and without being deemed to have waived, any Default or Event of Default and regardless of
whether such Revolver Loan is funded after the Commitment Termination Date.
(iv) As an accommodation to Borrowers, Agent and Lenders may permit telephonic
requests for Borrowings and electronic transmittal of instructions, authorizations, agreements or
reports to Agent by Borrowers; provided, however, that Borrowers shall confirm any telephonic request
for a Borrowing of LIBOR Loans by delivery of the required Notice of Borrowing to Agent by facsimile or
electronic transmission promptly, but in no event later than 5:00 p.m. on the same day. Neither Agent
nor any Lender shall have any liability to Borrowers for any loss or damage suffered by Borrowers as a
result of Agent's or any Lender's honoring of any requests, execution of any instructions,
authorizations or agreements or reliance on any reports communicated to it telephonically or
electronically and purporting to have been sent to Agent or Lenders by any Borrower and neither Agent
nor any Lender shall have any duty to verify the origin of any such communication or the identity or
authority of the Person sending it.
3.1.2. Fundings by Lenders. Subject to its receipt of notice from Agent of a Notice of Borrowing as provided
in Section 3.1.1(i) (except in the case of a deemed request by a Borrower for a Revolver Loan as provided in
Sections 3.1.1(ii) or (iii) or 3.1.3(ii) hereof, in which event no Notice of Borrowing need be submitted), each
Lender shall timely honor its Revolver Commitment by funding its Pro Rata share of each Borrowing of Revolver
Loans that is properly requested by such Borrower and that such Borrower is entitled to receive under the Loan
Agreement. Agent shall endeavor to notify Lenders of each Notice of Borrowing (or deemed request for a Borrowing
pursuant to Section 3.1.1(ii) or (iii) hereof), by 1:00 p.m. on the proposed funding date (in the case of Base
Rate Loans) or by 3:00 p.m. at least 1 Business Day before the proposed funding date (in the case of LIBOR
Loans). Each Lender shall deposit with Agent an amount equal to its Pro Rata share of the Borrowing requested or
deemed requested by such Borrower at Agent's designated bank in immediately available funds not later than
3:00 p.m. on the date of funding of such Borrowing, unless Agent's notice to Lenders is received after 1:00 p.m.
on the proposed funding date of a Base Rate Loan, in which event Lenders shall deposit with Agent their
respective Pro Rata shares of the requested Borrowing on or before 11:00 a.m. of the next Business Day. Subject
to its receipt of such amounts from Lenders, Agent shall make the proceeds of the Revolver Loans received by it
available to a Borrower by disbursing such proceeds in accordance with such Borrower's disbursement instructions
set forth in the applicable Notice of Borrowing. Neither Agent nor any Lender shall have any liability on
account of any delay by any bank or other depository institution in treating the proceeds of any Revolver Loan as
collected funds or any delay in receipt, or any loss, of funds that constitute a Revolver Loan, the wire transfer
of which was initiated by Agent in accordance with wiring instructions provided to Agent. Unless Agent shall
have been notified in writing by a Lender prior to the proposed time of funding that such Lender does not intend
to deposit with Agent an amount equal such Lender's Pro Rata share of the requested Borrowing (or deemed request
for a Borrowing pursuant to Section 3.1.1(ii) or (iii) hereof), Agent may assume that such Lender has deposited
or promptly will deposit its share with Agent and Agent may in its discretion disburse a corresponding amount to
Borrower on the applicable funding date. If a Lender's Pro Rata share of such Borrowing is not in fact deposited
with Agent, then, if Agent has disbursed to a Borrower an amount corresponding to such share, then such Lender
agrees to pay, and in addition Borrowers agree to repay, to Agent forthwith on demand such corresponding amount,
together with interest thereon, for each day from the date such amount is disbursed by Agent to or for the
benefit of Borrowers until the date such amount is paid or repaid to Agent, (a) in the case of Borrowers, at the
interest rate applicable to such Borrowing and (b) in the case of such Lender, at the Federal Funds Rate. If
such Lender repays to Agent such corresponding amount, such amount so repaid shall constitute a Revolver Loan,
and if both such Lender and Borrowers shall have repaid such corresponding amount, Agent shall promptly return to
Borrowers such corresponding amount in same day funds. A notice from Agent submitted to any Lender with respect
to amounts owing under this Section 3.1.2 shall be conclusive, absent manifest error.
3.1.3. Settlement and Settlement Loans.
(i) In order to facilitate the administration of the Revolver Loans under
this Agreement, Lenders agree (which agreement shall be solely between Lenders and Agent and shall not be
for the benefit of or enforceable by any Borrower) that settlement among them with respect to the
Revolver Loans may take place on a periodic basis on dates determined from time to time by Agent (each a
"Settlement Date"), which may occur before or after the occurrence or during the continuance of a
Default or Event of Default and whether or not all of the conditions set forth in Section 10 of this
Agreement have been met. On each Settlement Date, payment shall be made by or to each Lender in the
manner provided herein and in accordance with the Settlement Report delivered by Agent to Lenders
with respect to such Settlement Date so that, as of each Settlement Date and after giving effect to
the transaction to take place on such Settlement Date, each Lender shall hold its Pro Rata share of all
Revolver Loans and participations in LC Outstandings then outstanding. Agent shall request settlement
with the Lenders on a basis not less frequently than once every 5 Business Days.
(ii) Between Settlement Dates, Agent may request Fleet to advance, and Fleet may,
but shall in no event be obligated to, advance to Borrowers out of Fleet's own funds the entire
principal amount of any Borrowing of Revolver Loans that are Base Rate Loans requested or deemed
requested pursuant to this Agreement (any such Revolver Loan funded exclusively by Fleet being referred
to as a "Settlement Loan"). Each Settlement Loan shall constitute a Revolver Loan hereunder and shall
be subject to all of the terms, conditions and security applicable to other Revolver Loans, except that
all payments thereon shall be payable to Fleet solely for its own account. The obligation of Borrowers
to repay such Settlement Loans to Fleet shall be evidenced by the records of Fleet and need not be
evidenced by any promissory note. Agent shall not request Fleet to make any Settlement Loan if (A)
Agent shall have received written notice from any Lender that one or more of the applicable conditions
precedent set forth in Section 10 hereof will not be satisfied on the requested funding date for
the applicable Borrowing or (B) the requested Borrowing would exceed the amount of Availability on the
funding date or would cause the then outstanding principal balance of all Settlement Loans to exceed
$5,000,000. Fleet shall not be required to determine whether the applicable conditions precedent set
forth in Section 10 hereof have been satisfied or the requested Borrowing would exceed the amount of
Availability on the funding date applicable thereto prior to making, in its sole discretion,
any Settlement Loan. On each Settlement Date, or, if earlier, upon demand by Agent for payment thereof,
the then outstanding Settlement Loans shall be immediately due and payable. As provided in
Section 3.1.1(ii), Borrowers shall be deemed to have requested (without the necessity of submitting any
Notice of Borrowing) Revolver Loans to be made on each Settlement Date in the amount of all outstanding
Settlement Loans and to have Agent cause the proceeds of such Revolver Loans to be applied to the
repayment of such Settlement Loans and interest accrued thereon. Agent shall notify the Lenders of the
outstanding balance of Revolver Loans prior to 11:00 a.m. on each Settlement Date and each Lender (other
than Fleet) shall deposit with Agent (without setoff, counterclaim or reduction of any kind) an amount
equal to its Pro Rata share of the amount of Revolver Loans deemed requested in immediately available
funds not later than 2:00 p.m. on such Settlement Date. Each Lender's obligation to make such deposit
with Agent shall be absolute and unconditional and without regard to whether any of the conditions
precedent set forth in Section 10 hereof are satisfied, any Out-of-Formula Condition exists or the
Commitment Termination Date has occurred. If, as the result of the commencement by or against Borrowers
of any Insolvency Proceeding or otherwise, any Settlement Loan may not be repaid by the funding by
Lenders of Revolver Loans, then each Lender (other than Fleet) shall be deemed to have purchased a
participating interest in any unpaid Settlement Loan in an amount equal to such Lender's Pro Rata share
of such Settlement Loan and shall transfer to Fleet, in immediately available funds not later than the
2nd Business Day after Fleet's request therefor, the amount of such Lender's participation. The
proceeds of Settlement Loans may be used solely for purposes for which Revolver Loans generally may be
used in accordance with Section 1.1.3 hereof. If any amounts received by Fleet in respect of any
Settlement Loans are later required to be returned or repaid by Fleet to Borrowers or any other Obligor
or their respective representatives or successors-in-interest, whether by court order, settlement or
otherwise, the other Lenders shall, upon demand by Fleet with notice to Agent, pay to Agent for the
account of Fleet, an amount equal to each other Lender's Pro Rata share of all such amounts required to
be returned by Fleet.
3.1.4. Disbursement Authorization. Each Borrower hereby irrevocably authorizes Agent to disburse the proceeds
of each Revolver Loan requested by any Borrower, or deemed to be requested pursuant to Section 3.1.1 or Section
3.1.3(ii), as follows: (i) the proceeds of each Revolver Loan requested under Section 3.1.1(i) shall be
disbursed by Agent by wire transfer to such bank account as may be agreed upon by Borrowers and Agent from time
to time or elsewhere if pursuant to a written direction from any Borrower; and (ii) the proceeds of each Revolver
Loan requested under Section 3.1.1(ii) or Section 3.1.3(ii) shall be disbursed by Agent by way of direct payment
of the relevant interest or other Obligation. Any Loan proceeds received by any Borrower or in payment of any of
the Obligations shall be deemed to have been received by all Borrowers.
3.2. Defaulting Lender. If any Lender shall, at any time, fail to make any payment to Agent or Fleet that is
required hereunder, Agent may, but shall not be required to, retain payments that would otherwise be made to such
defaulting Lender hereunder and apply such payments to such defaulting Lender's defaulted obligations hereunder,
at such time, and in such order, as Agent may elect in its sole discretion. With respect to the payment of any
funds from Agent to a Lender or from a Lender to Agent, the party failing to make the full payment when due
pursuant to the terms hereof shall, upon demand by the other party, pay such amount together with interest on
such amount at the Federal Funds Rate. The failure of any Lender to fund its portion of any Revolver Loan or
payment in respect of an LC Obligation shall not relieve any other Lender of its obligation, if any, to fund
its portion of the Revolver Loan or payment in respect of an LC Obligation on the date of Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make any Revolver Loan or payment in respect of an LC
Obligation to be made by such Lender on the date of any Borrowing. Solely as among the Lenders and solely for
purposes of voting or consenting to matters with respect to any of the Loan Documents, Collateral or any
Obligations and determining a defaulting Lender's Pro Rata share of payments and proceeds of Collateral pending
such defaulting Lender's cure of its defaults hereunder, a defaulting Lender shall not be deemed to be a "Lender"
and such Lender's Commitment shall be deemed to be zero (0). The provisions of this Section 3.2 shall be solely
for the benefit of Agent and Lenders and may not be enforced by Borrowers.
3.3. Special Provisions Governing LIBOR Loans.
3.3.1. Number of LIBOR Loans. In no event may the number of LIBOR Loans outstanding at any time to any Lender
exceed 6.
3.3.2. Minimum Amounts. Each Borrowing of LIBOR Loans pursuant to Section 3.1.1(i), and each continuation of
or conversion to LIBOR Loans pursuant to Section 2.1.2 hereof, shall be in a minimum amount of $1,000,000 and
integral multiples of $100,000 in excess of that amount.
3.3.3. LIBOR Lending Office. Each Lender's initial LIBOR Lending Office is set forth opposite its name on the
signature pages hereof. Each Lender shall have the right at any time and from time to time to designate a
different office of itself or of any Affiliate as such Lender's LIBOR Lending Office, and to transfer any
outstanding LIBOR Loans to such LIBOR Lending Office. No such designation or transfer shall result in any
liability on the part of Borrowers for increased costs or expenses resulting solely from such designation or
transfer (except any such transfer that is made by a Lender pursuant to Section 2.6 or Section 2.7 hereof, or
otherwise for the purpose of complying with Applicable Law). Increased costs for expenses resulting from a
change in Applicable Law occurring subsequent to any such designation or transfer shall be deemed not to result
solely from such designation or transfer.
3.3.4. Funding of LIBOR Loans. Each Lender may, if it so elects, fulfill its obligation to make, continue or
convert LIBOR Loans hereunder by causing one of its foreign branches or Affiliates (or an international banking
facility created by such Lender) to make or maintain such LIBOR Loans; provided, however, that such LIBOR Loans
shall nonetheless be deemed to have been made and to be held by such Lender, and the obligation of Borrowers to
repay such LIBOR Loans shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or
international banking facility. The calculation of all amounts payable to Lender under Section 2.7 and 2.9 shall
be made as if each Lender had actually funded or committed to fund its LIBOR Loan through the purchase of an
underlying deposit in an amount equal to the amount of such LIBOR Loan and having a maturity comparable to the
relevant Interest Period for such LIBOR Loans; provided, however, each Lender may fund its LIBOR Loans in any
manner it deems fit and the foregoing presumption shall be utilized only for the calculation of amounts payable
under Section 2.7 and Section 2.9.
3.4. Borrowers' Representative. Each Borrower hereby irrevocably appoints Tropical and Tropical agrees to
act under this Agreement, as the agent and representative of itself and each other Borrower for all purposes
under this Agreement, including requesting Borrowings, selecting whether any Loan or portion thereof is to bear
interest as a Base Rate Loan or a LIBOR Loan, and receiving account statements and other notices and
communications to Borrowers (or any of them) from Agent. Agent may rely, and shall be fully protected in
relying, on any Notice of Borrowing, Notice of Conversion/Continuation, disbursement instructions, reports,
information, Borrowing Base Certificate or any other notice or communication made or given by Tropical, whether
in its own name, on behalf of any Borrower or on behalf of "the Borrowers," and Agent shall have no obligation to
make any inquiry or request any confirmation from or on behalf of any other Borrower as to the binding effect on
such Borrower of any such Notice of Borrowing, Notice of Conversion Continuation, instruction, report,
information, Borrowing Base Certificate or other notice or communication, nor shall the joint and
several character of Borrowers' liability for the Obligations be affected, provided that the provisions of this
Section 3.3 shall not be construed so as to preclude any Borrower from directly requesting Borrowings or taking
other actions permitted to be taken by "a Borrower" hereunder. Agent may maintain a single Loan Account in the
name of "Tropical Sportswear Int'l Corporation" hereunder, and each Borrower expressly agrees to such arrangement
and confirms that such arrangement shall have no effect on the joint and several character of such Borrower's
liability for the Obligations.
3.5. All Loans to Constitute One Obligation. The Loans shall constitute one general obligation of Borrowers
and (unless otherwise expressly provided in any Security Document) shall be secured by Agent's Lien upon all of
the Collateral; provided, however, that Agent and each Lender shall be deemed to be a creditor of each Borrower
and the holder of a separate claim against each Borrower to the extent of any Obligations jointly and severally
owed by Borrowers to Agent or such Lender.
Section 4. PAYMENTS
4.1. General Payment Provisions. All payments (including all prepayments) of principal of and interest on
the Loans, LC Outstandings and other Obligations that are payable to Agent or any Lender shall be made to Agent
in Dollars without any offset or counterclaim and free and clear of (and without deduction for) any present or
future Taxes, and, with respect to payments made other than by application of balances in the Payment Account, in
immediately available funds not later than 12:00 noon on the due date (and payment made after such time on the
due date to be deemed to have been made on the next succeeding Business Day). All payments received by Agent
shall be distributed by Agent in accordance with Section 4.6 hereof, subject to the rights of offset that Agent
may have as to amounts otherwise to be remitted to a particular Lender by reason of amounts due Agent from such
Lender under any of the Loan Documents.
4.2. Repayment of Revolver Loans.
4.2.1. Payment of Principal. The outstanding principal amounts with respect to the Revolver Loans shall be
repaid as follows:
(i) Any portion of the Revolver Loans consisting of the principal amount of
Base Rate Loans shall be paid by Borrowers to Agent, for the Pro Rata benefit of Lenders (or, in the case
of Settlement Loans, for the sole benefit of Fleet) unless timely converted to a LIBOR Loan in
accordance with this Agreement, immediately upon (a) each receipt by Agent, any Lender or Borrowers of
any proceeds of any of the Accounts or Inventory, to the extent of such proceeds, (b) the Commitment
Termination Date, and (c) in the case of Settlement Loans, the earlier of Fleet's demand for payment or
on each Settlement Date with respect to all Settlement Loans outstanding on such date.
(ii) Any portion of the Revolver Loans consisting of the principal amount of LIBOR
Loans shall be paid by Borrowers to Agent, for the Pro Rata benefit of Lenders, unless converted to a
Base Rate Loan or continued as a LIBOR Loan in accordance with the terms of this Agreement, immediately
upon (a) the last day of the Interest Period applicable thereto and (b) the Commitment Termination
Date. In no event shall Borrowers be authorized to make a voluntary prepayment with respect to any
Revolver Loan outstanding as a LIBOR Loan prior to the last day of the Interest Period applicable
thereto unless (x) otherwise agreed in writing by Agent or Borrowers is otherwise expressly authorized
or required by any other provision of this Agreement to pay any LIBOR Loan outstanding on a date other
than the last day of the Interest Period applicable thereto, and (y) Borrowers pay to Agent, for the Pro
Rata benefit of Lenders, concurrently with any prepayment of a LIBOR Loan, any amount due Agent and
Lenders under Section 2.9 hereof as a consequence of such prepayment. Notwithstanding the foregoing
provisions of this Section 4.2.1(ii), if, on any date that Agent receives proceeds of any of the
Accounts or Inventory, there are no Revolver Loans outstanding as Base Rate Loans, Agent may either hold
such proceeds as cash security for the timely payment of the Obligations or apply such proceeds to any
outstanding Revolver Loans bearing interest as LIBOR Loans as the same become due and payable (whether
at the end of the applicable Interest Periods or on the Commitment Termination Date).
(iii) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, if an Out-of-Formula Condition shall exist, Borrowers shall, on the sooner to occur of
Agent's demand or the first Business Day after any Borrower has obtained knowledge of
such Out-of-Formula Condition, repay the outstanding Revolver Loans that are Base Rate Loans in an amount
sufficient to reduce the aggregate unpaid principal amount of all Revolver Loans by an amount equal to
such excess; and, if such payment of Base Rate Loans is not sufficient to eliminate the Out-of-Formula
Condition, then Borrowers shall immediately deposit with Agent, for the Pro Rata benefit of Lenders, for
application to any outstanding Revolver Loans bearing interest as LIBOR Loans as the same become due and
payable (whether at the end of the applicable Interest Periods or on the Commitment Termination Date)
cash in an amount sufficient to eliminate such Out-of-Formula Condition, and Agent may (a) hold such
deposit as cash security pending disbursement of same to Lenders, or (b) if a Default or Event of
Default exists, apply such proceeds to pay the Obligations, including the Revolver Loans outstanding as
LIBOR Loans (in which event Borrowers shall also pay to Agent for the Pro Rata benefit of Lenders any
and all amounts required by Section 2.9 to be paid by reason of the prepayment of a LIBOR Loan prior to
the last day of the Interest Period applicable thereto).
4.2.2. Payment of Interest. Interest accrued on the Revolver Loans shall be due and payable on (i) the first
calendar day of each month (for the immediately preceding month), computed through the last calendar day of the
preceding month, with respect to any Revolver Loan (whether a Base Rate Loan or LIBOR Loan) and (ii) the last day
of the applicable Interest Period in the case of a LIBOR Loan. Accrued interest shall also be paid by Borrowers
on the Commitment Termination Date. With respect to any Base Rate Loan converted into a LIBOR Loan pursuant to
Section 2.1.2 on a day when interest would not otherwise have been payable with respect to such Base Rate Loan,
accrued interest to the date of such conversion on the amount of such Base Rate Loan so converted shall be paid
on the conversion date.
4.3. Reserved.
4.4. Payment of Other Obligations. The balance of the Obligations requiring the payment of money, including
the LC Outstandings and Extraordinary Expenses incurred by Agent or any Lender, shall be repaid by Borrowers to
Agent for allocation among Agent and Lenders as provided in the Loan Documents, or, if no date of payment is
otherwise specified in the Loan Documents, on demand.
4.5. Marshaling; Payments Set Aside. None of Agent or any Lender shall be under any obligation to marshal
any assets in favor of Borrowers or any other Obligor or against or in payment of any or all of the Obligations.
To the extent that Borrowers make a payment or payments to Agent or Lenders or any of such Persons receives
payment from the proceeds of any Collateral or exercises its right of setoff, and such payment or payments or the
proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other Person, then
to the extent of any loss by Agent or Lenders, the Obligations or part thereof originally intended to be
satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect
as if such payment or proceeds had not been made or received and any such enforcement or setoff had not
occurred. The provisions of the immediately preceding sentence of this Section 4.5 shall survive any termination
of the Commitments and payment in full of the Obligations.
4.6. Agent's Allocation of Payments and Collections.
4.6.1. Allocation of Payments. All monies to be applied to the Obligations, whether such monies represent
voluntary payments by one or more Obligors or are received pursuant to demand for payment or realized from any
disposition of Collateral, shall be allocated among Agent and such of the Lenders as are entitled thereto
(and, with respect to monies allocated to Lenders, on a Pro Rata basis unless otherwise provided herein):
(i) first, to Agent to pay principal and accrued interest on any portion of the Revolver Loans which Agent
may have advanced on behalf of any Lender and for which Agent has not been reimbursed by such Lender or Borrowers;
(ii) second, to Fleet to pay the principal and accrued interest on any portion of the Settlement Loans
outstanding, to be shared with Lenders that have acquired and paid for a participating interest in such
Settlement Loans; (iii) third, to the extent that Fleet has not received from any Participating Lender a payment
as required by Section 1.3.2 hereof, to Fleet to pay all such required payments from each Participating Lender;
(iv) fourth, to Agent to pay the amount of Extraordinary Expenses and amounts owing to Agent pursuant to Section
14.10 hereof that have not been reimbursed to Agent by Borrowers or Lenders, together with interest accrued
thereon at the rate applicable to Revolver Loans that are Base Rate Loans; (v) fifth, to Agent to pay any
Indemnified Amount that has not been paid to Agent by Obligors or Lenders, together with interest accrued thereon
at the rate applicable to Revolver Loans that are Base Rate Loans; (vi) sixth, to Agent to pay any fees due and
payable to Agent; (vii) seventh, to each Lender for any Indemnified Amount that such Lender has paid to Agent and
any Extraordinary Expenses that such Lender has reimbursed to Agent or such Lender has incurred, to the extent
that such Lender has not been reimbursed by Obligors therefor; (viii) eighth, to Fleet to pay principal and
interest with respect to LC Outstandings (or to the extent any of the LC Outstandings are contingent and an Event
of Default then exists, deposited in the Cash Collateral Account to provide security for the payment of the
LC Outstandings), which payment shall be shared with the Participating Lenders in accordance with
Section 1.3.2(iii) hereof; (ix) ninth, to Lenders in payment of the unpaid principal and accrued interest
in respect of the Loans (other than Settlement Loans) then outstanding; (x) tenth, to Lenders in payment of any
unpaid principal and accrued interest with respect to any of the remaining Obligations (other than the
Obligations described in clause (xi) below) to be shared among Agent and Lenders ratably in proportion to their
respective shares of such Loans and other Obligations (other than the Obligations described in clause (xi)
below), or on such other basis as may be agreed upon in writing by Agent and Lenders (which agreement or
agreements may be entered into without notice to or the consent or approval of Borrower); and (xi) eleventh, to
the Secured Parties in payment of any Cash Management Agreements or Hedging Agreements, to be shared among such
Secured Parties ratably. The allocations set forth in this Section 4.6 are solely to determine the rights and
priorities of Agent and Lenders as among themselves and may be changed by Agent and Lenders without notice to or
the consent or approval of any Borrower or any other Person.
4.6.2. Erroneous Allocation. Agent shall not be liable for any allocation or distribution of payments made by
it in good faith and, if any such allocation or distribution is subsequently determined to have been made in
error, the sole recourse of any Lender to which payment was due but not made shall be to recover from the other
Lenders any payment in excess of the amount to which such other Lenders are determined to be entitled (and such
other Lenders hereby agree to return to such Lender any such erroneous payments received by them).
4.7. Application of Payments and Collateral Proceeds. All Payment Items received by Agent by 12:00 noon,
Hartford, Connecticut time, on any Business Day shall be deemed received on that Business Day. All Payment Items
received by Agent after 12:00 noon, Hartford, Connecticut time, on any Business Day shall be deemed received on
the following Business Day. Each Borrower irrevocably waives the right to direct the application of any and all
payments and Collateral proceeds at any time or times hereafter received by Agent or any Lender from or on behalf
of Borrowers, and each Borrower does hereby irrevocably agree that Agent shall have the continuing exclusive
right to apply and reapply any and all such payments and Collateral proceeds received at any time or times
hereafter by Agent or its agent against the Obligations, in such manner as Agent may deem advisable,
notwithstanding any entry by Agent upon any of its books and records. If, as the result of Agent's collection of
proceeds of Accounts and other Collateral as authorized by Section 7.2.6 a credit balance exists, such credit
balance shall not accrue interest in favor of Borrowers, but shall be available to Borrowers at any time or times
for so long as no Default or Event of Default exists. Lenders may, at their option, offset such credit balance
against any of the Obligations upon and after the occurrence of an Event of Default.
4.8. Loan Accounts; the Register; Account Stated.
4.8.1. Loan Accounts. Each Lender shall maintain in accordance with its usual and customary practices an
account or accounts (a "Loan Account") evidencing the Debt of Borrowers to such Lender resulting from each Loan
owing to such Lender from time to time, including the amount of principal and interest payable to such Lender
from time to time hereunder and under each Note payable to such Lender. Any failure of a Lender to record in the
Loan Account, or any error in doing so, shall not limit or otherwise affect the obligation of Borrowers hereunder
(or under any Note) to pay any amount owing hereunder to such Lender.
4.8.2. The Register. Agent shall maintain a register (the "Register") which shall include a master account and
a subsidiary account for each Lender and in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of each Loan comprising such Borrowing and any Interest Period
applicable thereto, (ii) the effective date and amount of each Assignment and Acceptance delivered to and
accepted by it and the parties thereto, (iii) the amount of any principal or interest due and payable or to
become due and payable from Borrowers to each Lender hereunder or under the Notes, and (iv) the amount of any sum
received by Agent from Borrowers or any other Obligor and each Lender's share thereof. The Register shall be
available for inspection by Borrowers or any Lender at the offices of Agent at any reasonable time and from time
to time upon reasonable prior notice. Any failure of Agent to record in the Register, or any error in doing so,
shall not limit or otherwise affect the obligation of Borrowers hereunder (or under any Note) to pay any amount
owing with respect to the Loans or provide the basis for any claim against Agent.
4.8.3. Entries Binding. The entries made in the Register and each Loan Account shall constitute rebuttably
presumptive evidence of the information contained therein; provided, however, that if a copy of information
contained in the Register or any Loan Account is provided to any Person, or any Person inspects the Register or
any Loan Account, at any time or from time to time, then the information contained in the Register or the Loan
Account, as applicable, shall be conclusive and binding on such Person for all purposes absent manifest error,
unless such Person notifies Agent in writing within 30 days after such Person's receipt of such copy or such
Person's inspection of the Register or Loan Account of its intention to dispute the information contained therein.
4.9. Gross Up for Taxes. If Borrowers shall be required by Applicable Law to withhold or deduct any Taxes
from or in respect of any sum payable under this Agreement or any of the other Loan Documents, (a) the sum
payable to Agent or such Lender shall be increased as may be necessary so that, after making all required
withholding or deductions, Agent or such Lender (as the case may be) receives an amount equal to the sum it would
have received had no such withholding or deductions been made, (b) Borrowers shall make such withholding or
deductions, and (c) Borrowers shall pay the full amount withheld or deducted to the relevant taxation authority
or other authority in accordance with Applicable Law.
4.10. Withholding Tax Exemption. At least 5 Business Days prior to the first date on which interest or fees
are payable hereunder for the account of any Foreign Lender, such Foreign Lender agrees that it will deliver to
Borrowers and Agent 2 duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or
any subsequent replacement substitute or form therefor), certifying in either case that such Lender is entitled
to receive payment under this Agreement and its Note without deduction or withholding of any United States
federal income taxes. Each Foreign Lender which so delivers a Form W-8BEN or W-8ECI further undertakes to
deliver to Borrowers and Agent 2 additional copies of such form (or a successor form) on or before the date that
such form expires (currently, 3 successive calendar years for Form W-8BEN and one calendar year for Form W-8ECI)
or becomes obsolete or after the occurrence of any event requiring a change in the most form so delivered by it,
and such amendments thereto or extensions or renewals thereof as may be reasonably requested by Borrowers or
Agent, in each case, certifying that such Foreign Lender is entitled to receive payments under this Agreement and
its Notes without deduction or withholding of any United States federal income taxes, unless an event (including
any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would
otherwise be required that renders all such forms inapplicable or that would prevent such Foreign Lender from
duly completing and delivering any such form with respect to it and such Lender advises Borrowers and Agent that
it is not capable of receiving payments without any deduction or withholding of United States federal income
taxes.
4.11. Nature and Extent of Each Borrower's Liability.
4.11.1. Joint and Several Liability. Each Borrower shall be liable for, on a joint and
several basis, and hereby guarantees the timely payment by all other Borrowers of, all of the Loans and other
Obligations, regardless of which Borrower actually may have received the proceeds of any Loans or other
extensions of credit hereunder or the amount of such Loans received or the manner in which Agent or any Lender
accounts for such Loans or other extensions of credit on its books and records, it being acknowledged and agreed
that Loans to any Borrower inure to the mutual benefit of all Borrowers and that Agent and Lenders are relying on
the joint and several liability of Borrowers in extending the Loans and other financial accommodations
hereunder. Each Borrower hereby unconditionally and irrevocably agrees that upon default in the payment when due
(whether at stated maturity, by acceleration or otherwise) of any principal of, or interest owed on, any of the
Loans or other Obligations, such Borrower shall forthwith pay the same, without notice or demand.
4.11.2. Unconditional Nature of Liability. Each Borrower's joint and several liability
hereunder with respect to, and guaranty of, the Loans and other Obligations shall, to the fullest extent
permitted by Applicable Law, be unconditional irrespective of (i) the validity, enforceability, avoidance or
subordination of any of the Obligations or of any promissory note or other document evidencing all or any part of
the Obligations, (ii) the absence of any attempt to collect any of the Obligations from any other Obligor or any
Collateral or other security therefor, or the absence of any other action to enforce the same, (iii) the waiver,
consent, extension, forbearance or granting of any indulgence by Agent or any Lender with respect to any
provision of any instrument evidencing or securing the payment of any of the Obligations, or any other agreement
now or hereafter executed by any other Borrower and delivered to Agent or any Lender, (iv) the failure by Agent
to take any steps to perfect or maintain the perfected status of its security interest in or Lien upon, or to
preserve its rights to, any of the Collateral or other security for the payment or performance of any of the
Obligations or Agent's release of any Collateral or of its Liens upon any Collateral, (v) Agent's or Lenders'
election, in any proceeding instituted under the Bankruptcy Code, for the application of Section 1111(b)(2) of
the Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other Borrower, as
debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the release or compromise, in whole or in
part, of the liability of any Obligor for the payment of any of the Obligations, (viii) any amendment or
modification of any of the Loan Documents or waiver of any Default or Event of Default thereunder, (ix) any
increase in the amount of the Obligations beyond any limits imposed herein or in the amount of any interest, fees
or other charges payable in connection therewith, or any decrease in the same, (x) the disallowance of all or any
portion of Agent's or any Lender's claims for the repayment of any of the Obligations under Section 502 of the
Bankruptcy Code, or (xi) any other circumstance that might constitute a legal or equitable discharge or defense
of any Borrower. At any time an Event of Default exists, Agent may proceed directly and at once, without notice
to any Obligor, against any or all of Obligors to collect and recover all or any part of the Obligations, without
first proceeding against any other Obligor or against any Collateral or other security for the payment or
performance of any of the Obligations, and each Borrower waives any provision that might otherwise require Agent
under Applicable Law to pursue or exhaust its remedies against any Collateral or Obligor before pursuing another
Obligor. Each Borrower consents and agrees that Agent shall be under no obligation to marshal any assets in
favor of any Obligor or against or in payment of any or all of the Obligations.
4.11.3. No Reduction in Liability for Obligations. No payment or payments made by an Obligor
or received or collected by Agent or Lenders from a Borrower or any other Person by virtue of any action or
proceeding or any setoff or appropriation or application at any time or from time to time in reduction of or in
payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any
Borrower under this Agreement, each of whom shall remain jointly and severally liable for the payment and
performance of all Loans and other Obligations until the Obligations are paid in full and this Agreement is
terminated.
4.11.4. Contribution. Each Borrower is unconditionally obligated to repay the Obligations as
a joint and several obligor under this Agreement. If, as of any date, the aggregate amount of payments made by a
Borrower on account of the Obligations and proceeds of such Borrower's Collateral that are applied to the
Obligations exceeds the aggregate amount of Loan proceeds actually used by such Borrower in its business (such
excess amount being referred to as an "Accommodation Payment"), then each of the other Borrowers (each such
Borrower being referred to as a "Contributing Borrower") shall be obligated to make contribution to such Borrower
(the "Paying Borrower") in an amount equal to (A) the product derived by multiplying the sum of each
Accommodation Payment of each Borrower by the Allocable Percentage of the Borrower from whom contribution is
sought less (B) the amount, if any, of the then outstanding Accommodation Payment of such Contributing Borrower
(such last mentioned amount which is to be subtracted from the aforesaid product to be increased by any amounts
theretofore paid by such Contributing Borrower by way of contribution hereunder, and to be decreased by any
amounts theretofore received by such Contributing Borrower by way of contribution hereunder); provided, however,
that a Paying Borrower's recovery of contribution hereunder from the other Borrowers shall be limited to that
amount paid by the Paying Borrower in excess of its Allocable Percentage of all Accommodation Payments then
outstanding of all Borrowers. As used herein, the term "Allocable Percentage" shall mean, on any date of
determination thereof, a fraction the denominator of which shall be equal to the number of Borrowers who are
parties to this Agreement on such date and the numerator of which shall be 1; provided, however, that such
percentages shall be modified in the event that contribution from a Borrower is not possible by reason of
insolvency, bankruptcy or otherwise by reducing such Borrower's Allocable Percentage equitably and by adjusting
the Allocable Percentage of the other Borrowers proportionately so that the Allocable Percentages of all
Borrowers at all times equals 100%.
4.11.5. Subordination. Each Borrower hereby subordinates any claims, including any right of
payment, subrogation, contribution and indemnity, that it may have from or against any other Obligor, and any
successor or assign of any other Obligor, including any trustee, receiver or debtor-in-possession, howsoever
arising, due or owing or whether heretofore, now or hereafter existing, to the payment in full of all of the
Obligations.
Section 5. TERM AND TERMINATION OF COMMITMENTS
5.1. Term of Commitments. Subject to each Lender's right to cease making Loans and other extensions of
credit to Borrowers when any Default or Event of Default exists or upon termination of the Commitments as
provided in Section 5.2 hereof, the Commitments shall be in effect for a period of 3 years from the date hereof
through the close of business on June 6, 2006 (the "Term").
5.2. Termination.
5.2.1. Termination by Agent. Agent may (and upon the direction of the Required Lenders, shall) terminate the
Commitments without notice at any time an Event of Default exists; provided, however, that the Commitments shall
automatically terminate as provided in Section 11.2 hereof.
5.2.2. Termination by Borrowers. Upon at least 60 days prior written notice to Agent, Borrowers may, at their
option, terminate the Commitments; provided, however, no such termination by Borrowers shall be effective until
Borrowers have satisfied all of the Obligations. Any notice of termination given by Borrowers shall be
irrevocable unless Agent otherwise agrees in writing. Borrowers may elect to terminate the Commitments in their
entirety only. No section of this Agreement, Type of Loan available hereunder or Commitment may be terminated by
Borrowers singly.
5.2.3. Reserved.
5.2.4. Effect of Termination. On the effective date of termination of the Commitments by Agent or by
Borrowers, all of the Obligations shall be immediately due and payable and Lenders shall have no obligation to
make any Loans and Fleet shall have no obligation to procure any Letters of Credit. All undertakings,
agreements, covenants, warranties and representations of Borrowers contained in the Loan Documents shall survive
any such termination and Agent shall retain its Liens in the Collateral and all of its rights and remedies under
the Loan Documents notwithstanding such termination until Borrowers has satisfied the Obligations to Agent and
Lenders, in full, and Agent and Lenders have received from Obligors a full release of Indemnified Claims in form
and substance satisfactory to Agent. For purposes of this Agreement, the Obligations shall not be deemed to have
been satisfied until all Obligations for the payment of money have been paid to Agent in same day funds and all
Obligations that are at the time in question contingent (including, all LC Outstandings that exist by virtue of
an outstanding Letter of Credit) have been fully cash collateralized in an amount equal to 105% of the face
amount of all Letters of Credit or Agent has received as beneficiary a direct pay letter of credit in form and
from an issuing bank acceptable to Agent and providing for direct payment to Agent of all such contingent
Obligations at the time they become fixed (including reimbursement of all sums paid by Agent under any LC
Support). Notwithstanding the payment in full of the Obligations, Agent shall not be required to terminate its
security interests in any of the Collateral unless, with respect to any loss or damage Agent may incur as a
result of the dishonor or return of any Payment Items applied to the Obligations, Agent shall have received
either (i) a written agreement, executed by Borrowers and any Person deemed financially responsible by Agent
whose loans or other advances to Borrowers are used in whole or in part to satisfy the Obligations, indemnifying
Agent and Lenders from any such loss or damage or (ii) such monetary reserves and Liens on the Collateral for
such period of time as Agent, in its reasonable discretion, may deem necessary to protect Agent and Lenders from
any such loss or damage. The provisions of Sections 2.4, 2.7, 2.8, 2.9, 4.5, 4.9 and this Section 5.2.4 and all
obligations of Borrowers to indemnify Agent or any Lender pursuant to this Agreement or any of the other Loan
Documents, shall in all events survive any termination of the Commitments.
Section 6. COLLATERAL
6.1. Grant of Security Interest. To secure the prompt payment and performance of all of the Obligations,
each Borrower hereby grants to Agent, for the benefit of Secured Parties, a continuing security interest in and
Lien upon all personal property of such Borrower, whether now owned or existing or hereafter created, acquired or
arising and wheresoever located:
(i) all Accounts Collateral;
(ii) all Goods, including all Inventory and Equipment;
(iii) all Instruments;
(iv) all Chattel Paper;
(v) all Documents;
(vi) all General Intangibles;
(vii) all Deposit Accounts;
(viii) all Investment Property (but excluding any portion thereof that constitutes
Margin Stock unless otherwise expressly provided in any Security Documents);
(ix) all Letter-of-Credit Rights;
(x) all monies now or at any time or times hereafter in the possession or under
the control of Agent or a Lender or a bailee or Affiliate of Agent or a Lender, including any
Cash Collateral in the Cash Collateral Account;
(xi) all accessions to, substitutions for and all replacements, products and cash
and non-cash proceeds of (i) through (x) above, including proceeds of and unearned premiums with respect
to insurance policies insuring any of the Collateral and claims against any Person for loss of, damage
to or destruction of any of the Collateral; and
(xii) all books and records (including customer lists, files, correspondence, tapes,
computer programs, print-outs, and other computer materials and records) of such Borrower pertaining to
any of (i) through (xi) above.
6.2. Lien on Deposit Accounts. As additional security for the payment and performance of the Obligations,
each Borrower hereby grants to Agent, for the benefit of Secured Parties, a continuing security interest in and
Lien upon, and hereby collaterally assigns to Agent, all of such Borrower's right, title and interest in and to
each Deposit Account of such Borrower and in and to any deposits or other sums at any time credited to each such
Deposit Account, including any sums in any blocked account or any special lockbox account and in the accounts in
which sums are deposited. In connection with the foregoing, each Borrower hereby authorizes and directs each
such bank or other depository to pay or deliver to Agent upon its written demand therefor made at any time upon
the occurrence and during the continuation of an Event of Default and without further notice to such Borrower
(such notice being hereby expressly waived), all balances in each Deposit Account maintained by such Borrower
with such depository for application to the Obligations then outstanding, and the rights given Agent in
this Section shall be cumulative with and in addition to Agent's other rights and remedies in regard to
the foregoing Property as proceeds of Collateral. Each Borrower hereby irrevocably appoints Agent as such
Borrower's attorney-in-fact to collect any and all such balances to the extent any such payment is not made to
Agent by such bank or other depository after demand thereon is made by Agent pursuant hereto.
6.3. Other Collateral. In addition to the items of Property referred to in Section 6.1 above, the
Obligations shall also be secured by the Cash Collateral to the extent provided herein and all of the other items
of Property from time to time described in any of the Security Documents as security for any of the Obligations.
6.4. No Assumption of Liability. The security interest granted pursuant to this Agreement is granted as
security only and shall not subject Agent or any Lender to, or in any way alter or modify, any obligation of
liability of Borrowers with respect to or arising out of the Collateral.
6.5. Lien Perfection; Further Assurances. Promptly after Agent's request therefor, Borrowers shall execute
or cause to be executed and deliver to Agent such instruments, assignments, title certificates or other
documents as are necessary under the UCC or other Applicable Law (including any motor vehicle certificates of
title act) to perfect (or continue the perfection of) Agent's Lien upon the Collateral and shall take such other
action as may be requested by Agent to give effect to or carry out the intent and purposes of this Agreement.
Unless prohibited by Applicable Law, each Borrower hereby irrevocably authorizes Agent to execute and file in any
jurisdiction any financing statement or amendment thereto on such Borrower's behalf, including financing
statements that indicate the Collateral (i) as all assets or all personal property of such Borrower or words to
similar effect or (ii) as being of equal or lesser scope, or with greater or lesser detail, than as set forth in
this Section 6. Each Borrower also hereby ratifies its authorization for Agent to have filed in any jurisdiction
any like financing statement or amendment thereto if filed prior to the date hereof. The parties agree that a
carbon, photographic or other reproduction of this Agreement shall be sufficient as a financing statement and may
be filed in any appropriate office in lieu thereof.
6.6. Foreign Subsidiary Stock. Notwithstanding anything to the contrary set forth in Section 6.1 above, the
types or items of Collateral described in such Section shall include only sixty-six percent (66%) of the stock of
any Foreign Subsidiary.
Section 7. COLLATERAL ADMINISTRATION
7.1. General Provisions.
7.1.1. Location of Collateral. All tangible items of Collateral, other than Inventory in transit, shall at all
times be kept by Borrowers at one or more of the business locations of Borrowers set forth in Schedule 7.1.1
hereto and shall not be moved therefrom, without the prior written approval of Agent, except that in the absence
of an Event of Default and acceleration of the maturity of the Obligations in consequence thereof, Borrowers may
(i) make sales or other dispositions of any Collateral to the extent authorized by Section 9.2.10 hereof, and
(ii) move Inventory or Equipment or any record relating to any Collateral to a location in the United States other
than those shown on Schedule 7.1.1 hereto so long as Borrowers have given Agent at least 30 Business Days prior
written notice of such new location or, with respect to work in process Inventory, to the location of any third
party processor. Notwithstanding anything to the contrary contained in this Agreement, Borrowers shall not be
permitted to keep, store or otherwise maintain any Collateral at any location (including any location described
in Section 7.1.1), unless (i) a Borrower is the owner of such location, (ii) a Borrower leases such location and
the landlord has executed in favor of Agent a Lien Waiver, or (iii) the Collateral consists of Inventory placed
with a warehouseman, bailee or processor, Agent has received from such warehouseman, bailee or processor a Lien
Waiver and, to the extent determined necessary by Agent in its sole discretion, an appropriate UCC-1 financing
statement has been filed with the appropriate Governmental Authority in the jurisdiction where such warehouseman,
bailee or processor is located in order to perfect, or to maintain the uninterrupted perfection of, Agent's
security interest in such Inventory.
7.1.2. Insurance of Collateral; Condemnation Proceeds. Each Borrower shall maintain and pay for insurance upon
all Collateral, wherever located, covering casualty, hazard, public liability, theft, malicious mischief, and
such other risks in such amounts and with such insurance companies as are reasonably satisfactory to Agent.
Schedule 7.1.2 describes all insurance of Borrowers in effect on the date hereof. All proceeds payable under
each such policy shall be payable to Agent for application to the Obligations. Borrowers shall deliver the
originals or certified copies of such policies to Agent with satisfactory lender's loss payable endorsements
reasonably satisfactory to Agent naming Agent as sole loss payee, assignee or additional insured, as
appropriate. Each policy of insurance or endorsement shall contain a clause requiring the insurer to give not
less than 30 days prior written notice to Agent in the event of cancellation of the policy for any reason
whatsoever and a clause specifying that the interest of Agent shall not be impaired or invalidated by any act or
neglect of any Borrower or the owner of the Property or by the occupation of the premises for purposes more
hazardous than are permitted by said policy. If any Borrower fails to provide and pay for such insurance, Agent
may, at its option, but shall not be required to, procure the same and charge Borrowers therefor. Each Borrower
agrees to deliver to Agent, promptly as rendered, true copies of all reports made in any reporting forms to
insurance companies. For so long as no Event of Default exists, each Borrower shall have the right to settle,
adjust and compromise any claim with respect to any insurance maintained by such Borrower provided that all
proceeds thereof are applied in the manner specified in this Agreement, and Agent agrees promptly to provide any
necessary endorsement to any checks or drafts issued in payment of any such claim. At any time that an Event of
Default exists, only Agent shall be authorized to settle, adjust and compromise such claims, Agent shall have all
rights and remedies with respect to such policies of insurance as are provided for in this Agreement and the
other Loan Documents.
7.1.3. Protection of Collateral. All expenses of protecting, storing, warehousing, insuring, handling,
maintaining and shipping any Collateral, all Taxes imposed under any Applicable Law on any of the Collateral or
in respect of the sale thereof, and all other payments required to be made by Agent to any Person to realize upon
any Collateral shall be borne and paid by Borrowers. Agent shall not be liable or responsible in any way for the
safekeeping of any of the Collateral or for any loss or damage thereto (except for reasonable care in the custody
thereof while any Collateral is in Agent's actual possession) or for any diminution in the value thereof, or for
any act or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same
shall be at Borrowers' sole risk.
7.1.4. Defense of Title to Collateral. Each Borrower shall at all times defend such Borrower's title to the
Collateral and Agent's Liens therein against all Persons and all claims and demands whatsoever other than
Permitted Liens.
7.2. Administration of Accounts.
7.2.1. Records and Schedules of Accounts. Each Borrower shall keep accurate and complete records of its
Accounts and all payments and collections thereon and shall submit to Agent on such periodic basis as Agent shall
request a sales and collections report for the preceding period, in form satisfactory to Agent. Each Borrower
shall also provide to Agent on or before the 30th day of each month, a detailed aged trial balance of all
Accounts existing as of the last day of the preceding month, specifying the names, addresses, face value, dates
of invoices and due dates for each Account Debtor obligated on an Account so listed ("Schedule of Accounts"),
and, upon Agent's request therefor, copies of proof of delivery and a copy of all documents, including repayment
histories and present status reports relating to the Accounts so scheduled and such other matters and information
relating to the status of then existing Accounts as Agent shall reasonably request. In addition, if Accounts in
an aggregate face amount in excess of $1,000,000 cease to be Eligible Accounts in whole or in part, Borrowers
shall notify Agent of such occurrence promptly (and in any event within 2 Business Days) after any Borrower's
having obtained knowledge of such occurrence and the Borrowing Base shall thereupon be adjusted to reflect
such occurrence. Upon Agent's request therefor, each Borrower shall deliver to Agent copies of invoices or
invoice registers related to all of its Accounts.
7.2.2. Discounts, Disputes and Returns. If any Borrower grants any discounts, allowances or credits that are
not shown on the face of the invoice for the Account involved, such Borrower shall report such discounts,
allowances or credits, as the case may be to Agent as part of the next required Schedule of Accounts. If any
amounts due and owing in excess of $500,000 are in dispute between any Borrower and any Account Debtor, or if any
returns are made in excess of $500,000 with respect to any Accounts owing from an Account Debtor, such Borrower
shall provide Agent with written notice thereof at the time of submission of the next Schedule of Accounts,
explaining in detail the reason for the dispute or return, all claims related thereto and the amount in
controversy. At any time an Event of Default exists, Agent shall have the right to settle or adjust all disputes
and claims directly with the Account Debtor and to compromise the amount or extend the time for payment of any
Accounts comprising a part of the Collateral upon such terms and conditions as Agent may deem advisable, and to
charge the deficiencies, costs and expenses thereof, including attorneys' fees, to Borrowers.
7.2.3. Taxes. If an Account of any Borrower includes a charge for any Taxes payable to any Governmental
Authority, Agent is authorized, in its sole discretion, to pay the amount thereof to the proper taxing authority
for the account of such Borrower and to charge Borrower therefor; provided, however, that neither Agent nor
Lenders shall be liable for any Taxes that may be due by Borrowers.
7.2.4. Account Verification. Whether or not a Default or an Event of Default exists, Agent shall have the
right at any time, in the name of Agent, any designee of Agent or any Borrower to verify the validity, amount or
any other matter relating to any Accounts of such Borrower by mail, telephone, telegraph or otherwise. Borrowers
shall cooperate fully with Agent in an effort to facilitate and promptly conclude any such verification process.
7.2.5. Maintenance of Dominion Account. Borrowers shall maintain a Dominion Account pursuant to a lockbox or
other arrangement acceptable to Agent and, in the case of such Dominion Account and lockbox arrangement, with
such bank as may be selected by Borrowers and be acceptable to Agent. Borrowers shall issue to each such lockbox
bank an irrevocable letter of instruction directing such bank to deposit all payments or other remittances
received in the lockbox to the Dominion Account. Borrowers shall enter into agreements, in form satisfactory to
Agent, with each bank at which a Dominion Account is maintained by which such bank shall immediately transfer to
the Payment Account all monies deposited to the Dominion Account. All funds deposited in each Dominion Account
shall be subject to Agent's Lien. Borrowers shall obtain the agreement (in favor of and in form and content
satisfactory to Agent and Lenders) by each bank at which a Dominion Account is maintained to waive any offset
rights against the funds deposited into such Dominion Account, except offset rights in respect of charges
incurred in the administration of such Dominion Account. Neither Agent nor Lenders assume any responsibility to
Borrowers for such lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or
release with respect to deposits accepted by any bank thereunder.
7.2.6. Collection of Accounts and Proceeds of Collateral. To expedite collection, each Borrower shall endeavor
in the first instance to make collection of such Borrower's Accounts for Agent and Lenders. All Payment Items
received by any Borrower in respect of its Accounts, together with the proceeds of any other Collateral, shall be
held by such Borrower as trustee of an express trust for Agent's benefit; such Borrower shall immediately deposit
same in kind in the Dominion Account; and Agent may remit such proceeds to Lenders for application of such
proceeds to the Obligations in the manner authorized by this Agreement. Agent retains the right at all times
that a Default or an Event of Default exists to notify Account Debtors of any Borrower that Accounts have been
assigned to Agent and to collect Accounts directly in its own name and to charge to Borrowers the collection
costs and expenses incurred by Agent or Lenders, including reasonable attorneys' fees.
7.3. Administration of Inventory.
7.3.1. Records and Reports of Inventory. Each Borrower shall keep accurate and complete records of its
Inventory and shall furnish Agent and Lenders inventory reports respecting such Inventory in form and detail
satisfactory to Agent and Lenders at such times as Agent and Lenders may request, but so long as no Default or
Event of Default exists, no more frequently than once each month. Each Borrower shall, at its own expense,
conduct a physical inventory (or a cycle count certified by Borrower's firm of independent certified public
accountants) no less frequently than annually and periodic cycle counts consistent with such Borrower's
historical practices and shall provide to Agent and Lenders a report based on each such physical inventory and
cycle count promptly after completion thereof, together with such supporting information as Agent shall request.
Agent may participate in and observe each physical count or inventory, which participation shall be at Borrowers'
expense at any time that an Event of Default exists.
7.3.2. Returns of Inventory. No Borrower shall return any of its Inventory to a supplier or vendor thereof, or
any other Person, whether for cash, credit against future purchases or then existing payables, or otherwise,
unless (i) such return is in the Ordinary Course of Business of such Borrower and such Person; (ii) no Default or
Event of Default exists or would result therefrom; (iii) the return of such Inventory will not result in an
Out-of-Formula Condition; (iv) such Borrower promptly notifies Agent thereof if the aggregate Value of
all Inventory returned in any month exceeds $1,000,000; and (v) any payments received by such Borrower
in connection with any such return are promptly turned over to Agent for application to the Obligations.
7.3.3. Acquisitions of Inventory. No Borrower shall acquire or accept any Inventory on consignment or approval
and will use its best efforts to insure that all Inventory that is produced in the United States of America will
be produced in accordance with the FLSA.
7.4. Administration of Equipment.
7.4.1. Records and Schedules of Equipment. Each Borrower shall keep accurate records itemizing and describing
the kind, type, quality, quantity and cost of its Equipment and all dispositions made in accordance with
Section 7.4.2 hereof, and shall furnish Agent and Lenders with a current schedule containing the foregoing
information upon request by Agent. Promptly after request therefor by Agent, Borrowers shall deliver to Agent
and Lenders any and all evidence of ownership, if any, of any of the Equipment.
7.4.2. Dispositions of Equipment. No Borrower will sell, lease or otherwise dispose of or transfer any of the
Equipment or any part thereof without the prior written consent of Agent; provided, however, that the foregoing
restriction shall not apply, for so long as no Default or Event of Default exists, to (i) dispositions of any
Equipment that is owned on the Closing Date by any Foreign Subsidiary, (ii) dispositions of Equipment which, in
the aggregate during any consecutive 12-month period, has a fair market value or book value, whichever is more,
of $1,000,000 or less, provided that all Net Disposition Proceeds thereof are remitted to Agent for application
to the Obligations, or (iii) replacements of Equipment that is substantially worn, damaged or obsolete with
Equipment of like kind, function and value, provided that the replacement Equipment shall be acquired prior to or
concurrently with any disposition of the Equipment that is to be replaced, the replacement Equipment shall be
free and clear of Liens other than Permitted Liens that are not Purchase Money Liens, and Borrowers shall have
given Agent at least 10 days prior written notice of such disposition.
7.4.3. Condition of Equipment. The Equipment is in good operating condition and repair, and all necessary
replacements of and repairs thereto shall be made so that the value and operating efficiency of the Equipment
shall be maintained and preserved, reasonable wear and tear excepted. Each Borrower shall ensure that the
Equipment shall be mechanically and structurally sound, capable of performing the functions for which the
Equipment was originally designed, in accordance with the manufacturer's published and recommended
specifications. No Borrower will permit any of the Equipment to become affixed to any real Property leased to
such Borrower so that an interest arises therein under the real estate laws of the applicable jurisdiction unless
the landlord of such real Property has executed a landlord waiver or leasehold mortgage in favor of and in form
acceptable to Agent, and no Borrower will permit any of the Equipment to become an accession to any personal
Property that is subject to a Lien unless the Lien is a Permitted Lien.
7.5. Borrowing Base Certificates. On the Closing Date and on or before the third Business Day of each week
after the Closing Date, and at such other times as Agent may request, Borrowers shall deliver to Agent (and Agent
shall, on request from a Lender, promptly deliver to such Lender) a Borrowing Base Certificate prepared as of the
close of business of the previous week and as of such other periods as Agent may request. All calculations of
Availability in connection with any Borrowing Base Certificate shall originally be made by Borrowers and
certified by a Senior Officer to Agent, provided that Agent shall have the right to review and adjust, in the
exercise of its reasonable credit judgment, any such calculation (i) to reflect its reasonable estimate of
declines in value of any of the Collateral described therein and (ii) to the extent that such calculation is not
in accordance with this Agreement or does not accurately reflect the amount of the Availability Reserve. In no
event shall the Borrowing Base be deemed to exceed the amount of the Borrowing Base shown on the Borrowing Base
Certificate last received by Agent prior to such date, as such Borrowing Base Certificate may be adjusted by
Agent as herein authorized.
Section 8. REPRESENTATIONS AND WARRANTIES
8.1. General Representations and Warranties. To induce Agent and Lenders to enter into this Agreement and to
make available the Commitments, each Borrower warrants and represents to Agent and Lenders that:
8.1.1. Organization and Qualification. Each Borrower and each of its Subsidiaries is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization. Each Borrower and
each of its Subsidiaries is duly qualified and is authorized to do business and is in good standing as a foreign
corporation in each state or jurisdiction listed on Schedule 8.1.1 hereto and in all other states and
jurisdictions in which the failure of such Borrower or any of such Subsidiaries to be so qualified would have
a Material Adverse Effect.
8.1.2. Power and Authority. Each Borrower and each of its Subsidiaries is duly authorized and empowered to
enter into, execute, deliver and perform this Agreement and each of the other Loan Documents to which it is a
party. The execution, delivery and performance of this Agreement and each of the other Loan Documents have been
duly authorized by all necessary action and do not and will not (i) require any consent or approval of any of the
holders of the Equity Interests of any Borrower or any of its Subsidiaries; (ii) contravene the Organization
Documents of any Borrower or any of its Subsidiaries; (iii) violate, or cause any Borrower or any of its
Subsidiaries to be in default under, any provision of any Applicable Law, order, writ, judgment, injunction,
decree, determination or award in effect having applicability to any Borrower or any of its Subsidiaries;
(iv) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which any Borrower or any of its Subsidiaries is a party or by which it or its
Properties may be bound or affected that involves a dollar amount of $1,000,000 or more; or (v) result in, or
require, the creation or imposition of any Lien (other than Permitted Liens) upon or with respect to any of the
Properties now owned or hereafter acquired by any Borrower or any of its Subsidiaries.
8.1.3. Legally Enforceable Agreement. This Agreement is, and each of the other Loan Documents when delivered
under this Agreement will be, a legal, valid and binding obligation of each Borrower and each of its
Subsidiaries signatories thereto enforceable against them in accordance with the respective terms of such Loan
Documents, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights.
8.1.4. Capital Structure. As of the date hereof, Schedule 8.1.4 hereto states (i) the correct name of each
Subsidiary, its jurisdiction of incorporation and the percentage of its Equity Interests having voting powers
owned by each Person, (ii) the name of each Borrower's corporate Affiliates and the nature of the affiliation and
(iii) the number of authorized and issued Equity Interests (and treasury shares) of each Borrower and its
Subsidiaries. Each Borrower has good title to all of the shares it purports to own of the Equity Interests of
each of its Subsidiaries, free and clear in each case of any Lien other than Permitted Liens. All such Equity
Interests have been duly issued and are fully paid and non-assessable. Since the date of the financial
statements of Borrowers referred to in Section 8.1.9 hereof, Borrowers have not made, or obligated itself to
make, any Distribution. There are no outstanding options to purchase, or any rights or warrants to subscribe
for, or any commitments or agreements to issue or sell, or any Equity Interests or obligations convertible into,
or any powers of attorney relating to, shares of the capital stock of any Borrower or any of its Subsidiaries.
Except as set forth on Schedule 8.1.4 hereto, there are no outstanding agreements or instruments binding upon the
holders of any Borrower's Equity Interests relating to the ownership of its Equity Interests.
8.1.5. Corporate Names. During the 5-year period preceding the date of this Agreement, no Borrower nor any of
its Subsidiaries has been known as or used any corporate, fictitious or trade names except those listed on
Schedule 8.1.5 hereto. Except as set forth on Schedule 8.1.5, no Borrower nor any of its Subsidiaries has been
the surviving corporation of a merger or consolidation or acquired all or substantially all of the assets of any
Person.
8.1.6. Business Locations; Agent for Process. As of the date hereof, the chief executive office and other
places of business of each Borrower and its Subsidiaries are as listed on Schedule 7.1.1 hereto. During the
5-year period preceding the date of this Agreement, no Borrower nor any of its Subsidiaries has had an office,
place of business or agent for service of process other than as listed on Schedule 7.1.1. Except as shown on
Schedule 7.1.1 on the date hereof, no Inventory of any Borrower or any of its Subsidiaries is stored with
a bailee, warehouseman or similar Person, nor is any Inventory consigned to any Person.
8.1.7. Title to Properties; Priority of Liens. Each Borrower and each of its Subsidiaries has good and
marketable title to and fee simple ownership of, or valid and subsisting leasehold interests in, all of its real
Property, and good title to all of its personal Property, including all Property reflected in the financial
statements referred to in Section 8.1.9 or delivered pursuant to Section 9.1.3, in each case free and clear of
all Liens except Permitted Liens. Each Borrower has paid or discharged, and has caused each of its Subsidiaries
to pay and discharge, all lawful claims which, if unpaid, might become a Lien against any Properties of such
Borrower or any such Subsidiary that is not a Permitted Lien. The Liens granted to Agent pursuant to
this Agreement and the other Security Documents are first priority Liens, subject only to those Permitted Liens
which are expressly permitted by the terms of this Agreement to have priority over the Liens of Agent.
8.1.8. Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and
representations made by Borrowers with respect to any Account. Unless otherwise indicated in writing to Agent or
excluded by Borrowers in its calculation of the Borrowing Base in any Borrowing Base Certificate, with respect to
each Account, each Borrower warrants that:
(i) It is genuine and in all respects what it purports to be, and it is not
evidenced by a judgment;
(ii) It arises out of a completed, bona fide sale and delivery of goods
or rendition of services by a Borrower in the Ordinary Course of Business and substantially in accordance
with the terms and conditions of all purchase orders, contracts or other documents relating thereto and
forming a part of the contract between a Borrower and the Account Debtor;
(iii) It is for a liquidated amount maturing as stated in the duplicate invoice
covering such sale or rendition of services, a copy of which has been furnished or is available to Agent
on request;
(iv) Such Account, and Agent's security interest therein, is not, and will not
(by voluntary act or omission of a Borrower) be in the future, subject to any offset, Lien, deduction,
defense, dispute, counterclaim or any other adverse condition except for disputes resulting in returned
goods where the amount in controversy is deemed by Agent to be immaterial, and each such Account is
absolutely owing to a Borrower and is not contingent in any respect or for any reason;
(v) The contract under which such Account arose does not condition or restrict a
Borrower's right to assign to Agent the right to payment thereunder unless such Borrower has obtained
the Account Debtor's consent to such collateral assignment or complied with any conditions to
such assignment (regardless of whether under the UCC or other Applicable Law any such restrictions are
ineffective to prevent the grant of a Lien upon such Account in favor of Agent);
(vi) Such Borrower has not made any agreement with any Account Debtor thereunder
for any extension, compromise, settlement or modification of any such Account or any deduction
therefrom, except discounts or allowances which are granted by a Borrower in the Ordinary Course of
Business for prompt payment and which are reflected in the calculation of the net amount of each
respective invoice related thereto and are reflected in the Schedules of Accounts submitted to Agent
pursuant to Section 7.2.1 hereof;
(vii) To the best of such Borrower's knowledge, there are no facts, events or
occurrences which are reasonably likely to impair the validity or enforceability of such Account or
reduce the amount payable thereunder from the face amount of the invoice and statements delivered to
Agent with respect thereto;
(viii) To the best of such Borrower's knowledge, the Account Debtor thereunder
(1) had the capacity to contract at the time any contract or other document giving rise to the Account
was executed and (2) is Solvent; and
(ix) To the best of such Borrower's knowledge, there are no proceedings or actions
which are threatened or pending against any Account Debtor thereunder and which are reasonably likely to
result in any material adverse change in such Account Debtor's financial condition or the collectibility
of such Account.
8.1.9. Financial Statements; Fiscal Year. The Consolidated and consolidating balance sheets of Borrowers and
such other Persons described therein (including the accounts of all Subsidiaries of Borrowers for the respective
periods during which a Subsidiary relationship existed) as of April 26, 2003, and the related statements of
income, changes in stockholder's equity, and changes in financial position for the periods ended on such dates,
have been prepared in accordance with GAAP, and present fairly the financial positions of Borrowers and such
Persons at such dates and the results of Borrowers' operations for such periods. Since April 26, 2003, there has
been no material change in the condition, financial or otherwise, of Borrowers and such other Persons as shown on
the Consolidated balance sheet as of such date and no material change in the aggregate value of Equipment owned
by Borrowers or such other Persons, except for a possible valuation adjustment on certain real property, fixtures
and Equipment with respect to Borrower's new building in Tampa, Florida, none of which transactions or changes,
individually or in the aggregate has been materially adverse.
8.1.10. Full Disclosure. The financial statements referred to in Section 8.1.9 hereof do not contain any untrue
statement of a material fact and neither this Agreement nor any other written statement contains or omits any
material fact necessary to make the statements contained herein or therein not materially misleading. There is
no fact or circumstances in existence on the date hereof which any Borrower has failed to disclose to Agent in
writing that may reasonably be expected to have a Material Adverse Effect.
8.1.11. Solvent Financial Condition. Each Borrower and each of its Subsidiaries is now Solvent and, after
giving effect to the Loans to be made hereunder, the Letters of Credit to be issued in connection herewith and
the consummation of the other transactions described in the Loan Documents, Borrower and each of its Subsidiaries
will be Solvent.
8.1.12. Surety Obligations. Except as set forth on Schedule 8.1.12 hereto on the date hereof, no Borrower nor
any of its Subsidiaries is obligated as surety or indemnitor under any surety or similar bond or other contract
issued or entered into any agreement to assure payment, performance or completion of performance of any
undertaking or obligation of any Person.
8.1.13. Taxes. The FEIN of each of each Borrower and each of its Subsidiaries is as shown on Schedule 8.1.13
hereto. Each Borrower and each of its Subsidiaries has filed all federal, state and local tax returns and other
reports it is required by law to file and has paid, or made provision for the payment of, all Taxes upon it, its
income and Properties as and when such Taxes are due and payable, except to the extent being Properly Contested.
The provision for Taxes on the books of each Borrower and each of its Subsidiaries are adequate for all years not
closed by applicable statutes, and for its current Fiscal Year.
8.1.14. Brokers. There are no claims against any Borrower for brokerage commissions, finder's fees or
investment banking fees in connection with the transactions contemplated by this Agreement or any of the other
Loan Documents.
8.1.15. Intellectual Property. Each Borrower and each of its Subsidiaries each owns or has the lawful right to
use all Intellectual Property necessary for the present and planned future conduct of its business without
any conflict with the rights of others; there is no objection to, or pending (or, to Borrower's knowledge,
threatened) Intellectual Property Claim with respect to, any Borrower's or any of its Subsidiaries' right to use
any such Intellectual Property and such Borrower is not aware of any grounds for challenge or objection thereto;
and, except as may be disclosed on Schedule 8.1.15, no Borrower nor any of its Subsidiaries pays any royalty or
other compensation to any Person for the right to use any Intellectual Property. All such patents, trademarks,
service marks, tradenames, copyrights, licenses and other similar rights are listed on Schedule 8.1.15 hereto, to
the extent they are registered under any Applicable Law or are otherwise material to any Borrower's or any of its
Subsidiaries' business.
8.1.16. Governmental Approvals. Each Borrower and each of its Subsidiaries has, and is in good standing with
respect to, all Governmental Approvals necessary to continue to conduct its business as heretofore or proposed to
be conducted by it and to own or lease and operate its Properties as now owned or leased by it, except for
Governmental Approvals the failure to possess which could not be reasonably expected to have a Material Adverse
Effect.
8.1.17. Compliance with Laws. Each Borrower and each of its Subsidiaries has duly complied with, and its
Properties, business operations and leaseholds are in compliance in all material respects with, the provisions of
all Applicable Law, including the Xxxxxxxx-Xxxxx Act (except to the extent that any such noncompliance with
Applicable Law could not reasonably be expected to have a Material Adverse Effect) and there have been no
citations, notices or orders of noncompliance issued to any Borrower or any of its Subsidiaries under any such
law, rule or regulation. No Inventory has been produced in violation of the FLSA. With respect to matters
arising under any Environmental Laws, the representations and warranties contained in the Environmental
Certificate are true and correct on the date hereof.
8.1.18. Burdensome Contracts. No Borrower nor any of its Subsidiaries is a party or subject to any contract,
agreement, or charter or other corporate restriction, which has or could be reasonably expected to have a
Material Adverse Effect. No Borrower nor any of its Subsidiaries is a party or subject to any Restrictive
Agreements, except as set forth on Schedule 8.1.18 hereto, none of which prohibit the execution or delivery of
any of the Loan Documents by any Obligor or the performance by any Obligor of its obligations under any of the
Loan Documents to which it is a party, in accordance with the terms of such Loan Documents.
8.1.19. Litigation. Except as set forth on Schedule 8.1.19 hereto, there are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Borrower, threatened on the date hereof against or affecting
any Borrower or any of its Subsidiaries, or the business, operations, Properties, prospects, profits or condition
of any Borrower or any of its Subsidiaries, (i) which relate to any of the Loan Documents or any of the
transactions contemplated thereby or (ii) which, if determined adversely to any Borrower or any of its
Subsidiaries, could reasonably be expected to have a Material Adverse Effect. To the knowledge of each Borrower,
no Borrower nor any of its Subsidiaries is in default on the date hereof with respect to any order, writ,
injunction, judgment, decree or rule of any court, Governmental Authority or arbitration board or tribunal.
8.1.20. No Defaults. No event has occurred and no condition exists which would, upon or after the execution and
delivery of this Agreement or any Borrower's performance hereunder, constitute a Default or an Event of Default.
No Borrower nor any of its Subsidiaries is in default, and no event has occurred and no condition exists which
constitutes or which with the passage of time or the giving of notice or both would constitute a default, under
any Material Contract or in the payment of any Debt of a Borrower or a Subsidiary to any Person for Money
Borrowed.
8.1.21. Leases. Schedule 8.1.21 hereto is a complete listing of each capitalized and operating lease of each
Borrower and each of its Subsidiaries on the date hereof that constitutes a Material Contract. Each Borrower and
each of its Subsidiaries is in substantial compliance with all of the terms of each of its respective capitalized
and operating leases and there is no basis upon which the lessors under any such leases could terminate same or
declare Borrower or any of its Subsidiaries in default thereunder.
8.1.22. Pension Plans. Except as disclosed on Schedule 8.1.22 hereto, no Borrower nor any of its Subsidiaries
has any Plan on the date hereof. Each Borrower and each of its Subsidiaries is in full compliance with the
requirements of ERISA and the regulations promulgated thereunder with respect to each Plan, except to the extent
such non-compliance could not reasonably be expected to have or result in a Material Adverse Effect in connection
with any Plan. No fact or situation that is reasonably likely to result in a material adverse change in the
financial condition of any Borrower or any of its Subsidiaries exists in connection with any Plan. No Borrower
nor any of its Subsidiaries has any withdrawal liability in connection with a Multi-employer Plan.
8.1.23. Trade Relations. There exists no actual or threatened termination, cancellation or limitation of, or
any materially adverse modification or change in, the business relationship between any Borrower and any customer
or any group of customers whose purchases individually or in the aggregate are material to the business of such
Borrower, or with any material supplier or group of suppliers, and there exists no condition or state of facts or
circumstances which is reasonably likely to have a Material Adverse Effect or prevent any Borrower from
conducting such business after the consummation of the transactions contemplated by this Agreement in
substantially the same manner in which it has heretofore been conducted.
8.1.24. Labor Relations. Except as described on Schedule 8.1.24 hereto, no Borrower nor any of its
Subsidiaries is on the date hereof a party to or bound by any collective bargaining agreement, management
agreement or consulting agreement. On the date hereof, there are no material grievances, disputes or
controversies with any union or any other organization of any Borrower's or any Subsidiary's employees, or, to
any Borrower's knowledge, any threats of strikes, work stoppages or any asserted pending demands for collective
bargaining by any union or organization.
8.1.25. Not a Regulated Entity. No Obligor is (i) an "investment company" or a "person directly or indirectly
controlled by or acting on behalf of an investment company" within the meaning of the Investment Company Act of
1940; (ii) a "holding company," or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," within the meaning of the Public Utility Holding
Company Act of 1935; or (iii) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any
public utilities code or any other Applicable Law regarding its authority to incur Debt.
8.1.26. Margin Stock. No Borrower nor any of its Subsidiaries is engaged, principally or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin
Stock.
8.2. Reaffirmation of Representations and Warranties. Each representation and warranty contained in this
Agreement and the other Loan Documents shall be deemed to be reaffirmed by each Borrower on each day that any
Obligations are outstanding or that Borrowers request or are deemed to have requested an extension of credit
hereunder, except for changes in the nature of a Borrower's or, if applicable, any of its Subsidiaries' business
or operations that may occur after the date hereof in the Ordinary Course of Business so long as Required Lenders
have consented to such changes or such changes are not violative of any provision of this Agreement.
Notwithstanding the foregoing, representations and warranties which by their terms are applicable only to a
specific date shall be deemed made only at and as of such date.
8.3. Survival of Representations and Warranties. All representations and warranties of Borrowers contained
in this Agreement or any of the other Loan Documents shall survive the execution, delivery and acceptance thereof
by Agent, Lenders and the parties thereto and the closing of the transactions described therein or related
thereto.
Section 9. COVENANTS AND CONTINUING AGREEMENTS
9.1. Affirmative Covenants. For so long as there are any Commitments outstanding and thereafter until
payment in full of the Obligations, each Borrower covenants that, unless the Required Lenders have otherwise
consented in writing, it shall and shall cause each Subsidiary to:
9.1.1. Visits and Inspections. Permit representatives of Agent, from time to time, as often as may be
reasonably requested, but only during normal business hours and (except when a Default or Event of Default
exists) upon reasonable prior notice to a Borrower, to visit and inspect the Properties of such Borrower and each
of its Subsidiaries, inspect, audit and make extracts from such Borrower's and each Subsidiary's books and
records, and discuss with its officers, its employees and its independent accountants, such Borrower's and each
Subsidiary's business, financial condition, business prospects and results of operations. Representatives of
each Lender shall be authorized to accompany Agent on each such visit and inspection and to participate with
Agent therein, but at their own expense, unless a Default or Event of Default exists. Neither Agent nor any
Lender shall have any duty to make any such inspection and shall not incur any liability by reason of its failure
to conduct or delay in conducting any such inspection.
9.1.2. Notices. Notify Agent and Lenders in writing, promptly after a Borrower's obtaining knowledge thereof,
(i) of the commencement of any litigation affecting any Obligor or any of its Properties, whether or not the
claims asserted in such litigation are considered by Borrowers to be covered by insurance, and of the institution
of any administrative proceeding, to the extent that such litigation or proceeding, if determined adversely to
such Obligor, could reasonably be expected to have a Material Adverse Effect; (ii) of any material labor dispute
to which any Obligor may become a party, any strikes or walkouts relating to any of its plants or other
facilities, and the expiration of any labor contract to which it is a party or by which it is bound; (iii) of any
material default by any Obligor under, or termination of, any Material Contract or any note, indenture, loan
agreement, mortgage, lease, deed, guaranty or other similar agreement relating to any Debt of such Obligor
exceeding $3,000,000; (iv) of the existence of any Default or Event of Default; (v) of any default by any Person
under any note or other evidence of Debt payable to an Obligor in an amount exceeding $3,000,000; (vi) of any
judgment against any Obligor in an amount exceeding $1,000,000; (vii) of the assertion by any Person of
any Intellectual Property Claim, the adverse resolution of which could reasonably be expected to have a Material
Adverse Effect; (viii) of any violation or asserted violation by any Borrower of any Applicable Law (including
ERISA, OSHA, FLSA, or any Environmental Laws), the adverse resolution of which could reasonably be expected to
have a Material Adverse Effect; (ix) of any Environmental Release by an Obligor or on any Property owned or
occupied by an Obligor; (x) of the discharge of Borrowers' independent accountants or any withdrawal of
resignation by such independent accountants from their acting in such capacity; and (xi) of any pending or
threatened strike, work stoppage, unfair labor practice claim or other labor dispute affecting any Borrower or
any of its Subsidiaries in a manner that could reasonably be expected to have a Material Adverse Effect.
In addition, Borrowers shall give Agent at least 30 Business Days' prior written notice of any Obligor's opening
of any new office or place of business.
9.1.3. Financial and Other Information. Keep adequate records and books of account with respect to its
business activities in which proper entries are made in accordance with GAAP reflecting all its financial
transactions; and cause to be prepared and to be furnished to Agent and Lenders the following (all to be prepared
in accordance with GAAP applied on a consistent basis, unless Borrowers' certified public accountants concur in
any change therein, such change is disclosed to Agent and is consistent with GAAP and, if required by the
Required Lenders, the financial covenants set forth in Section 9.3 are amended in a manner requested by the
Required Lenders to take into account the effects of such change):
(i) as soon as available, and in any event within 90 days after the close of each
Fiscal Year unqualified audited balance sheets of Borrowers and their respective Subsidiaries as of the
end of such Fiscal Year and the related statements of income, shareholders' equity and cash flow, on a
Consolidated and consolidating basis, certified without material qualification by a firm of independent
certified public accountants of recognized national standing selected by Borrowers but reasonably
acceptable to Agent (except for a qualification for a change in accounting principles with which the
accountant concurs), and setting forth in each case in comparative form the corresponding Consolidated
and consolidating figures for the preceding Fiscal Year;
(iii) as soon as available, and in any event within 30 days after the end of each
month hereafter (but within 60 days after the last month in a Fiscal Year), including the last month of
Borrowers' Fiscal Year, unaudited balance sheets of Borrowers and its Subsidiaries as of the end of such
month and the related unaudited Consolidated statements of income and cash flow for such month and for
the portion of Borrowers' Fiscal Year then elapsed, on a Consolidated and consolidating basis, setting
forth in each case in comparative form the corresponding figures for the preceding Fiscal Year and
certified by the principal financial officer of Borrowers as prepared in accordance with GAAP and fairly
presenting the Consolidated financial position and results of operations of Borrowers and their
Subsidiaries for such month and period subject only to changes from audit and year-end adjustments and
except that such statements need not contain notes;
(iv) at Agent's request, a detailed trade payable agings in form acceptable to
Agent; and
(v) promptly after the sending or filing thereof, as the case may be, copies of
any proxy statements, financial statements or reports which any Borrower has made generally available to
its shareholders and copies of any regular, periodic and special reports or registration statements
which any Borrower files with the SEC or any Governmental Authority which may be substituted therefor,
or any national securities exchange.
Concurrently with the delivery of the financial statements described in clause (i) of this Section 9.1.3
(or at such later time as issued by Borrower's accountants), Borrowers shall deliver to Agent and Lenders a copy
of the accountants' report to Borrowers' management that is prepared in connection with such financial statements
and also shall cause to be prepared and shall deliver to Agent and Lenders a certificate of the aforesaid
certified public accountants stating to Agent and Lenders that, based upon such accountants' audit of the
Consolidated financial statements of Borrowers and their Subsidiaries performed in connection with their
examination of said financial statements, nothing came to their attention that caused them to believe that
Borrowers were not in compliance with Section 9.3 hereof (to the extent such compliance was required pursuant to
Section 9.3) , or, if they are aware of such noncompliance, specifying the nature thereof, and acknowledging, in
a manner satisfactory to Agent, that they are aware that Agent and Lenders are relying on such financial
statements in making their decisions with respect to the Loans. Concurrently with the delivery of the financial
statements described in clauses (i) and (ii) of this Section 9.1.3, or more frequently if requested by Agent or
any Lender during any period that a Default or Event of Default exists, Borrowers shall cause to be prepared and
furnished to Agent and Lenders a Compliance Certificate executed by the chief financial officer of Borrowers.
Promptly after the sending or filing thereof, Borrowers shall also provide to Agent copies of any annual
report to be filed in accordance with ERISA in connection with each Plan and such other data and information
(financial and otherwise) as Agent, from time to time, may reasonably request, bearing upon or related to the
Collateral or any Borrower's and any of its Subsidiaries' financial condition or results of operations.
9.1.4. Landlord and Storage Agreements. Provide Agent with copies of all existing agreements, and promptly
after execution thereof provide Agent with copies of all future agreements, between any Borrower and any
landlord, warehouseman or bailee which owns any premises at which any Collateral may, from time to time, be kept.
9.1.5. Projections. No later than 30 days prior to the end of each Fiscal Year of Borrowers, deliver to Agent
and Lenders the Projections of Borrowers for the forthcoming 3 Fiscal Years, year by year, and for the
forthcoming Fiscal Year, quarter by quarter.
9.1.6. Taxes. Pay and discharge all Taxes prior to the date on which such Taxes become delinquent or penalties
attach thereto, except and to the extent only that such Taxes are being Properly Contested.
9.1.7. Compliance with Laws. Comply with all Applicable Law, including ERISA, all Environmental Laws, FLSA,
OSHA, and all laws, statutes, regulations and ordinances regarding the collection, payment and deposit of Taxes,
and obtain and keep in force any and all Governmental Approvals necessary to the ownership of its Properties or
to the conduct of its business, to the extent that any such failure to comply, obtain or keep in force could be
reasonably expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any
Environmental Release shall occur at or on any of the Properties of any Borrower or any of its Subsidiaries,
Borrowers shall, or shall cause the applicable Subsidiary to, act promptly and diligently to investigate and
report to Agent and all appropriate Governmental Authorities the extent of, and to make appropriate remedial
action to eliminate, such Environmental Release, whether or not ordered or otherwise directed to do so by any
Governmental Authority.
9.1.8. Insurance. In addition to the insurance required herein with respect to the Collateral, maintain with
its current insurers or with other financially sound and reputable insurers having a rating of at least A+ or
better by Best Rating Guide, (i) insurance with respect to its Properties and business against such casualties
and contingencies of such type (including product liability, workers' compensation, larceny, embezzlement, or
other criminal misappropriation insurance) and in such amounts and with such coverages, limits and deductibles as
is customary in the business of such Borrower or such Subsidiary and (ii) business interruption insurance in an
amount not less than $40,000,000.
9.1.9. Intellectual Property. At any time requested by Agent, and not less frequently than once each year,
deliver to Agent, in form and substance acceptable to Agent and in recordable form, all documents necessary for
Agent to perfect its Lien on any Intellectual Property obtained or acquired by any Borrower.
9.1.10. In-Transit Inventory. With respect to any Inventory that is in-transit to the United States, Borrowers
shall ensure that (a) is shipped FOB shopping point, (b) is backed by a documentary Letter of Credit issued by
Bank, (e) for which all documents issued by the shipper or bailee thereof are negotiable and issued in the name
of Borrower for Lender and are delivered to Agent (or non-negotiable and consigned to Agent if at any time
requested by Agent), (d) a bailment agreement, in form and content satisfactory in all respects to Lender, has
been duly executed and delivered to Lender by each carrier, freight forwarder or customs agent with respect to
such Inventory, or documents of title covering such Inventory, and (e) is insured by marine insurance acceptable
to Lender, with Lender shown as sole loss payee thereon, against loss, damage or theft.
9.1.11. License Agreements. Keep each License Agreement in full force and effect for so long as any Borrower
has any Inventory, the manufacture, sale or distribution of which is in any manner governed by or subject to such
License Agreement.
9.1.12. Xxxxxxxx-Xxxxx Act.9.1.13. Comply in all material respects with the provisions of Xxxxxxxx-Xxxxx Act and
will not use any proceeds of the Loans directly or indirectly to fund a personal loan to or for the benefit of a
director or executive officer of a Borrower or Guarantor, or otherwise used for any purpose that is prohibited by
Applicable Law.
9.2. Negative Covenants. For so long as there are any Commitments outstanding and thereafter until payment
in full of the Obligations, each Borrower covenants that, unless the Required Lenders have otherwise consented in
writing, it shall not and shall not permit any Subsidiary to:
9.2.1. Fundamental Changes. Merge, reorganize, consolidate or amalgamate with any Person, or liquidate, wind
up its affairs or dissolve itself, in each case whether in a single transaction or in a series of related
transactions, except for mergers or consolidations of any Subsidiary with another Subsidiary; change a Borrower's
name or conduct business under any new fictitious name; or change a Borrower's FEIN except for (i) mergers or
consolidations of any Subsidiary with any Borrower or another Subsidiary; (ii) mergers or consolidations of any
Subsidiary of Tropical into Tropical; and (iii) the winding up of the affairs of any Foreign Subsidiary, and
dispositions expressly authorized by Section 9.2.10 hereof.
9.2.2. Loans. Make any loans or other advances of money to any Person other than (i) to an officer or employee
of a Borrower or a Subsidiary for salary, travel advances, advances against commissions and other similar
advances in the Ordinary Course of Business; (ii) to Foreign Contractors of a Borrower in the ordinary course of
business, not to exceed, together with any guaranties under Section 10.2.3(iv), $2,000,000 in the aggregate at
any time outstanding; (iii) from TSCI to Tropical; and (iv) to purchasers in the form of deferred payment in
connection with the sale of any Equipment, to the extent such sale is permitted hereunder. Nothing herein shall
be deemed to override, modify or waive any requirement for Borrowers to comply at all times with the provisions
of the Xxxxxxxx-Xxxxx Act.
9.2.3. Permitted Debt. Create, incur, assume, guarantee or suffer to exist any Debt, except:
(i) the Obligations;
(ii) Subordinated Debt existing on the Closing Date;
(iii) accounts payable by such Borrower or a Subsidiary to trade creditors that
are not aged more than 30 days from the due date, in each case incurred in the Ordinary Course of
Business and paid within such time period, unless the same are being Properly Contested;
(iv) obligations to pay Rentals permitted by Section 9.2.14;
(v) Permitted Purchase Money Debt;
(vi) Debt for accrued payroll, Taxes and other operating expenses (other than for
Money Borrowed) incurred in the Ordinary Course of Business of such Borrower or such Subsidiary,
including Cash Management Obligations, in each case so long as payment thereof is not past due and
payable unless, in the case of Taxes only, such Taxes are being Properly Contested;
(vii) Debt for Money Borrowed by such Borrower (other than the Obligations,
Permitted Purchase Money Debt and Subordinated Debt permitted herein), but only to the extent that such
Debt is outstanding on the date of this Agreement;
(viii) Permitted Contingent Obligations; Debt for Money Borrowed owing by (a) a
Borrower to another Borrower or a Domestic Subsidiary of a Borrower and (b) a Domestic Subsidiary of a
Borrower to any Borrower or any other Domestic Subsidiary of such Borrower;
(ix) the Senior Subordinated Notes or any Exchange Notes and the guaranties by
Subsidiaries of the Senior Subordinated Notes or Exchange Notes so long as such guaranties are
subordinated in right of payment to the Obligations;
(x) Debt that is not included in any of the preceding paragraphs of this
Section 9.2.3, is not secured by a Lien (unless such Lien is a Permitted Lien) and does not exceed at any
time, in the aggregate, the sum of $5,000,000 as to all Borrowers and all of their Subsidiaries; and
(xi) Refinancing Debt so long as each of the Refinancing Conditions is met.
None of the provisions of this Section 9.2.3 that authorize any Obligor to incur any Debt shall be
deemed to override, modify or waive any of the provisions of Section 9.3, which will constitute an independent
and separate covenant and obligation of each Borrower.
9.2.4. Affiliate Transactions. Enter into, or be a party to any transaction with any Affiliate or stockholder,
except: (i) the transactions contemplated by the Loan Documents; (ii) payment of reasonable compensation to
officers and employees for services actually rendered to Borrowers or their respective Subsidiaries;
(iii) payment of customary directors' fees and indemnities; (iv) transactions with Affiliates that were
consummated prior to the date hereof and have been disclosed to Agent prior to the Closing Date; and
(v) transactions with Affiliates in the Ordinary Course of Business and pursuant to the reasonable requirements of
such Borrower's or such Subsidiary's business and upon fair and reasonable terms that are fully disclosed to
Agent and are no less favorable to such Borrower or such Subsidiary than such Borrower or such Subsidiary would
obtain in a comparable arm's length transaction with a Person not an Affiliate or stockholder of such Borrower or
such Subsidiary. Nothing herein shall be deemed to override, modify or waive any requirement for Borrowers to
comply at all times with the provisions of the Xxxxxxxx-Xxxxx Act.
9.2.5. Limitation on Liens. Create or suffer to exist any Lien upon any of its Property, income or profits,
whether now owned or hereafter acquired, except the following (collectively, "Permitted Liens"):
(i) Liens at any time granted in favor of Agent;
(ii) Liens for Taxes (excluding any Lien imposed pursuant to any of the provisions
of ERISA) not yet due or being Properly Contested;
(iii) statutory Liens (excluding any Lien imposed pursuant to any of the provisions
of ERISA) arising in the Ordinary Course of Business of a Borrower or a Subsidiary, but only if and for
so long as (x) payment in respect of any such Lien is not at the time required or the Debt secured by
any such Liens is being Properly Contested and (y) such Liens do not materially detract from the value
of the Property of such Borrower or such Subsidiary and do not materially impair the use thereof in the
operation of such Borrower's or such Subsidiary's business;
(iv) Purchase Money Liens securing Permitted Purchase Money Debt;
(v) Liens securing Debt of a Subsidiary of any Borrower to another Borrower or to
another such Subsidiary;
(vi) Liens arising by virtue of the rendition, entry or issuance against such
Borrower or any of its Subsidiaries, or any Property of such Borrower or any of its Subsidiaries, of any
judgment, writ, order, or decree that involves the payment of money in an amount that exceeds the
uncontested insurance available therefore by $1,000,000 or more for so long as each such Lien (a) is in
existence for less than 20 consecutive days after it first arises or is being Properly Contested and (b)
is at all times junior in priority to any Liens in favor of Agent;
(vii) Liens incurred or deposits made in the Ordinary Course of Business to secure
the performance of tenders, bids, leases, contracts (other than for the repayment of Money Borrowed),
statutory obligations and other similar obligations or arising as a result of progress payments under
government contracts, provided that, to the extent any such Liens attach to any of the Collateral,
such Liens are at all times subordinate and junior to the Liens upon the Collateral in favor of Agent;
(viii) easements, rights-of-way, restrictions, covenants or other agreements of
record and other similar charges or encumbrances on real Property of such Borrower or a any of its
Subsidiaries that do not secure any monetary obligation and do not interfere with the ordinary conduct
of the business of such Borrower or such Subsidiary;
(ix) normal and customary rights of setoff upon deposits of cash in favor of banks
and other depository institutions and Liens of a collection bank arising under the UCC on Payment Items
in the course of collection;
(x) Liens securing Indebtedness of a Foreign Subsidiary that is in existence on
the Closing Date;
(xi) such other Liens as appear on Schedule 9.2.5 hereto, to the extent provided
therein; and
(xii) such other Liens as Agent and the Required Lenders in their sole discretion
may hereafter approve in writing.
The foregoing negative pledge shall not apply to any Margin Stock to the extent that the application of such
negative pledge to such Margin Stock would require filings or other actions by any Lender under such regulations
or otherwise result in a violation of such regulations.
9.2.6. Subordinated Debt. Make any payment of all or any part of any Subordinated Debt or take any other
action or omit to take any other action in respect of any Subordinated Debt, except in accordance with the
subordination agreement relative thereto and except as permitted in Section 9.2.22 hereof; or amend or modify the
terms of any agreement applicable to any Subordinated Debt, other than to extend the time of payment thereof or
to reduce the rate of interest payable in connection therewith. To the extent that any payment is permitted to
be made with respect to any Subordinated Debt pursuant to the provisions of the subordination agreement relative
thereto, as a condition precedent to Borrowers' authorization to make any such payment, Borrowers shall provide
to Agent, not less than 5 Business Days prior to the scheduled payment, a certificate from a Senior Officer of
Tropical stating that no Default or Event of Default is in existence as of the date of the certificate or will be
in existence as of the date of such payment (both with and without giving effect to the making of such payment),
and specifying the amount of principal and interest to be paid.
9.2.7. Distributions. Declare or make any Distributions, except for Upstream Payments.
9.2.8. Upstream Payments. Create or suffer to exist any encumbrance or restriction on the ability of a
Subsidiary to make any Upstream Payment, except for encumbrances or restrictions (i) pursuant to the Loan
Documents, (ii) existing under Applicable Law and (iii) identified and fully disclosed in Schedule 9.2.8.
9.2.9. Capital Expenditures. Make Capital Expenditures (including expenditures by way of capitalized leases)
which in the aggregate, as to all Borrowers and their Subsidiaries, exceed (i) $17,500,000 during Borrowers' 2003
Fiscal Year or (ii) $10,000,000 during any Fiscal Year of Borrowers thereafter.
9.2.10. Disposition of Assets. Sell, assign, lease, consign or otherwise dispose of any of its Properties or
any interest therein, including any disposition of Property as part of a sale and leaseback or synthetic lease
transaction, to or in favor of any Person, except (i) sales of Inventory in the Ordinary Course of Business
(unless restricted by Lenders after the occurrence of an Event of Default), (ii) dispositions of Equipment to the
extent authorized by Section 7.4.2 hereof, (iii) a transfer of Property to a Borrower by a Subsidiary,
(iv) non-exclusive licenses of technology and other Intellectual Property by and among any Borrower and any of its
Subsidiaries, and (v) other dispositions expressly authorized by other provisions of the Loan Documents,
including Section 9.2.5 hereof.
9.2.11. Subsidiaries. Form or acquire any Subsidiary after the Closing Date without providing Agent 30 days
prior written notice thereof or permit any existing Subsidiary to issue any additional Equity Interests except
director's qualifying shares.
9.2.12. Xxxx-and-Hold Sales and Consignments. Make a sale to any customer on a xxxx-and-hold, guaranteed sale,
sale and return, sale on approval or consignment basis, or any sale on a repurchase or return basis.
9.2.13. Restricted Investments. Make or have any Restricted Investment.
9.2.14. Leases. Become a lessee under any operating lease (other than a lease under which a Borrower or any of
its Subsidiaries is lessor) of Property if the aggregate Rentals payable during any current or future period of
12 consecutive months under the lease in question and all other leases under which such Borrower or any of its
Subsidiaries is then lessee would exceed $7,000,000. The term "Rentals" means, as of the date of determination,
all payments which the lessee is required to make by the terms of any lease.
9.2.15. Tax Consolidation. File or consent to the filing of any consolidated income tax return with any Person
other than a Subsidiary.
9.2.16. Accounting Changes. Make any significant change in accounting treatment or reporting practices, except
as may be required by GAAP, or establish a fiscal year different from the Fiscal Year.
9.2.17. Organization Documents. Amend, modify or otherwise change any of the terms or provisions in any of its
Organization Documents as in effect on the date hereof, except for changes that do not affect in any way such
Borrower's or any of its Subsidiaries' rights and obligations to enter into and perform the Loan Documents to
which it is a party and to pay all of the Obligations and that do not otherwise have a Material Adverse Effect.
9.2.18. Restrictive Agreements. Enter into or become a party to any Restrictive Agreement; provided that the
foregoing shall not apply to (i) Restrictive Agreements existing on the date hereof and identified on Schedule
8.1.18 (but shall apply to any amendment or modification expanding the scope of any restriction or condition
contained in any such Restrictive Agreement), (ii) restrictions or conditions imposed by any Restrictive
Agreement evidencing or governing secured Debt that is permitted by this Agreement if such restrictions or
conditions apply only to the Properties securing such Debt, and (iii) customary provisions in leases and other
contracts restricting the assignment thereof.
9.2.19. Hedging Agreements. Enter into any Hedging Agreement, other than Hedging Agreements entered into in the
Ordinary Course of Business to hedge or mitigate risks to which any Borrower or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities and not for any speculative purpose.
9.2.20. Conduct of Business. Engage in any business other than the business engaged in by it on the Closing
Date and any business or activities which are substantially similar, related or incidental thereto.
9.2.21. Senior Subordinated Notes. Redeem or repurchases any of the Senior Subordinated Notes unless at the
time of such redemption or repurchase, and after giving effect thereto, the Senior Subordinated Note Repurchase
Conditions are satisfied.
9.3. Financial Covenants. At all times after the Financial Covenant Trigger Date, and for so long as there
are any Commitments outstanding and thereafter until payment in full of the Obligations, Borrowers covenant that,
unless otherwise consented to by the Required Lenders in writing, Borrowers shall:
9.3.1. Consolidated Fixed Charge Coverage Ratio. Maintain a Consolidated Fixed Charge Coverage Ratio of not
less than the ratio shown below for the period corresponding thereto:
Period Ratio
March 30, 2003, through June 28, 2003 .65 to 1.0
March 30, 2003, through September 27, 2003 .90 to 1.0
March 30, 2003, through January 3, 2004 1.0 to 1.0
March 30, 2003, through April 3, 2004 1.05 to 1.0
As of July 3, 2004, for the immediately 1.10 to 1.0
preceding twelve-month period
As of October 2, 2004 and as of the last 1.15 to 1.0
day of each quarter thereafter, for the
immediately preceding twelve-month period
9.3.2. Consolidated Funded Debt/Consolidated EBITDA. Maintain a ratio of Consolidated Funded Debt
/Consolidated EBITDA of not more than the ratio shown below for the period corresponding thereto:
Period Ratio
March 30, 2003, through June 28, 2003 5.50 to 1.0
March 30, 2003, through September 27, 2003 5.25 to 1.0
March 30, 2003, through January 3, 2004 5.00 to 1.0
March 30, 2003, through April 3, 2004 5.00 to 1.0
As of July 3, 2004, for the immediately 4.75 to 1.0
preceding twelve-month period
As of October 2, 2004 and as of the last 4.50 to 1.0
day of each quarter thereafter, for the
immediately preceding twelve-month period
Section 10. CONDITIONS PRECEDENT
10.1. Conditions Precedent to Initial Credit Extensions. Initial Lenders shall not be required to fund any
Loan requested by Borrowers, procure any Letter of Credit, or otherwise extend credit to Borrowers, unless, on or
before June 6, 2003, each of the following conditions has been satisfied:
10.1.1. Loan Documents. Each of the Loan Documents shall have been duly executed and delivered to Agent by each
of the signatories thereto (and, with the exception of the Notes, in sufficient counterparts for each Lender) and
accepted by Agent and Initial Lenders and each Obligor shall be in compliance with all of the terms thereof.
10.1.2. Availability. Agent shall have determined, and Initial Lenders shall be satisfied that, immediately
after Initial Lenders have made the initial Revolver Loans to be made on the Closing Date, Bank has issued
the Letters of Credit to be issued on the Closing Date and Borrowers have paid (or made provision for payment of)
all closing costs incurred in connection with the Commitments, Availability is not less than $20,000,000.
10.1.3. Evidence of Perfection and Priority of Liens. Agent shall have received copies of all filing receipts
or acknowledgments issued by any Governmental Authority to evidence any filing or recordation necessary to
perfect the Liens of Agent in the Collateral and evidence in form satisfactory to Agent and Initial Lenders that
such Liens constitute valid and perfected security interests and Liens, and that there are no other Liens upon
any Collateral except for Permitted Liens.
10.1.4. Organization Documents. Agent shall have received copies of the Organization Documents of each Obligor,
and all amendments thereto, certified by the Secretary of State or other appropriate officials of the
jurisdiction of each Borrower's and each other Obligor's states of organization.
10.1.5. Good Standing Certificates. Agent shall have received good standing certificates for each Obligor,
issued by the Secretary of State or other appropriate official of such Obligor's jurisdiction of organization and
each jurisdiction where the conduct of such Obligor's business activities or ownership of its Property
necessitates qualification.
10.1.6. Opinion Letters. Agent shall have received a favorable, written opinion of Akerman, Senterfitt &
Xxxxxx, P.A., counsel to Borrowers, covering, to Agent's satisfaction, the matters set forth on Exhibit F
attached hereto.
10.1.7. Insurance. Agent shall have received certified copies of the property and casualty insurance policies
of Borrowers with respect to the Collateral, or certificates of insurance with respect to such policies in form
acceptable to Agent, and loss payable endorsements on Agent's standard form of loss payee endorsement naming
Agent as loss payee with respect to each such policy and certified copies of Borrowers' liability insurance
policies, including product liability policies, together with endorsements naming Agent as an additional insured,
all as required by the Loan Documents.
10.1.8. Lockbox; Dominion and Concentration Accounts. Agent shall have received the duly executed agreements
establishing the Lockbox and each Dominion Account, in each case with a financial institution acceptable to Agent
for the collection or servicing of the Accounts.
10.1.9. No Labor Disputes. Agent shall have received assurances satisfactory to it that there are no threats
of strikes or work stoppages by any employees, or organization of employees, of any Obligor which Agent
reasonably determines may have a Material Adverse Effect.
10.1.10. Compliance with Laws and Other Agreements. Agent shall have determined or received assurances
satisfactory to it that none of the Loan Documents or any of the transactions contemplated thereby violate any
Applicable Law, court order or agreement binding upon any Obligor.
10.1.11. No Material Adverse Change. No material adverse change in the financial condition of any Obligor or
in the quality, quantity or value of any Collateral shall have occurred since April 26, 2003.
10.1.12. Payment of Fees. Borrowers shall have paid, or made provision for the payment on the Closing Date of,
all fees and expenses to be paid hereunder to Agent and Lenders on the Closing Date.
10.1.13. Syndication. Agent shall have received Commitments from Lenders (other than Fleet) in an aggregate
amount of $48,000,000.
10.1.14. LC Conditions. With respect to the procurement of any Letter of Credit on the Closing Date, each of the
LC Conditions is satisfied.
10.2. Conditions Precedent to All Credit Extensions. Lenders shall not be required to fund any Loans, procure
any Letters of Credit, or otherwise extend any credit to or for the benefit of Borrowers, unless and until each
of the following conditions has been and continues to be satisfied:
10.2.1. No Defaults. No Default or Event of Default exists at the time, or would result from the funding, of
any Loan or other extension of credit.
10.2.2. Satisfaction of Conditions in Other Loan Documents. Each of the conditions precedent set forth in any
other Loan Document shall have been and shall remain satisfied.
10.2.3. No Litigation. No action, proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain
or prohibit, or to obtain damages in respect of, or which is related to or arises out of, this Agreement or any
of the other Loan Documents or the consummation of the transactions contemplated hereby or thereby.
10.2.4. No Material Adverse Effect. No event shall have occurred and no condition shall exist which has or
could be reasonably expected to have a Material Adverse Effect.
10.2.5. Borrowing Base Certificate. Agent shall have received each Borrowing Base Certificate required by the
terms of this Agreement or otherwise requested by Agent.
10.2.6. LC Conditions. With respect to the procurement of any Letter of Credit after the Closing Date, each of
the LC Conditions is satisfied.
10.3. Inapplicability of Conditions. None of the conditions precedent set forth in Sections 10.1 or 10.2
shall be conditions to the obligation of (i) each Participating Lender to make payments to Fleet pursuant to
Section 1.3.2, (ii) each Lender to deposit with Agent such Lender's Pro Rata share of a Borrowing in accordance
with Section 3.1.2, (iii) each Lender to fund its Pro Rata share of a Revolver Loan to repay outstanding
Settlement Loans to Fleet as provided in Section 3.1.3(ii), (iv) each Lender to pay any amount payable to Agent
or any other Lender pursuant to this Agreement or (v) Agent to pay any amount payable to any Lender pursuant to
this Agreement.
10.4. Limited Waiver of Conditions Precedent. If Lenders shall make any Loan, procure any Letter of Credit,
or otherwise extend any credit to Borrowers under this Agreement at a time when any of the foregoing conditions
precedent are not satisfied (regardless of whether the failure of satisfaction of any such conditions precedent
was known or unknown to Agent or Lenders), the funding of such Loan shall not operate as a waiver of the right of
Agent and Lenders to require the satisfaction of all conditions precedent with respect to each subsequent
Borrowing requested by Borrowers or a waiver of any Default or Event of Default as a consequence of the failure
of any such conditions to be satisfied, unless Agent, with the prior written consent of the Required Lenders, in
writing waives the satisfaction of any condition precedent, in which event such waiver shall only be applicable
for the specific instance given and only to the extent and for the period of time expressly stated in such
written waiver.
Section 11. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
11.1. Events of Default. The occurrence or existence of any one or more of the following events or conditions
shall constitute an "Event of Default" (each of which Events of Default shall be deemed to exist unless and until
waived by Agent and Lenders in accordance with the provisions of Section 12.9 hereof):
11.1.1. Payment of Obligations. Borrowers shall fail to pay any of the Obligations on the due date thereof
(whether due at stated maturity, on demand, upon acceleration or otherwise).
11.1.2. Misrepresentations. Any representation, warranty or other written statement to Agent or any Lender by
or on behalf of any Obligor, whether made in or furnished in compliance with or in reference to any of the Loan
Documents (including any representation made in any Borrowing Base Certificate), proves to have been false or
misleading in any material respect when made or furnished or when reaffirmed pursuant to Section 8.2 hereof.
11.1.3. Breach of Specific Covenants. Any Borrower shall fail or neglect to perform, keep or observe any
covenant contained in Sections 6.5, 7.1.1, 7.2.4, 7.2.5, 7.2.6, 7.5, 9.1.1, 9.1.3, 9.1.6, 9.1.8, 9.1.9, 9.1.11,
9.2 or 9.3 hereof on the date that such Borrower is required to perform, keep or observe such covenant.
11.1.4. Breach of Other Covenants. Any Borrower shall fail or neglect to perform, keep or observe any covenant
contained in this Agreement (other than a covenant which is dealt with specifically elsewhere in Section 11.1
hereof) and the breach of such other covenant is not cured to Agent's and the Required Lender's satisfaction
within 30 days after the sooner to occur of any Senior Officer's receipt of notice of such breach from Agent or
the date on which such failure or neglect first becomes known to any Senior Officer; provided, however, that such
notice and opportunity to cure shall not apply in the case of any failure to perform, keep or observe any
covenant which is not capable of being cured at all or within such 30-day period or which is a willful and
knowing breach by any Borrower.
11.1.5. Default Under Security Documents/Other Agreements. Any Borrower or any other Obligor shall default in
the due and punctual observance or performance of any liability or obligation to be observed or performed by it
under any of the Other Agreements or Security Documents.
11.1.6. Other Defaults. There shall occur any default or event of default on the part of any Borrower or any
Subsidiary under any agreement, document or instrument to which such Borrower or such Subsidiary is a party or by
which such Borrower or such Subsidiary or any of their respective Properties is bound, creating or relating to
any Debt (other than the Obligations) in excess of $3,000,000 if the payment or maturity of such Debt may be
accelerated in consequence of such event of default or demand for payment of such Debt may be made.
11.1.7. Uninsured Losses. Any loss, theft, damage or destruction of any of the Collateral not fully covered
(subject to such deductibles as Agent shall have permitted) by insurance if the amount not covered by insurance
exceeds $1,000,000.
11.1.8. Material Adverse Effect. There shall occur any event or condition that has a Material Adverse Effect.
11.1.9. Solvency. Any Obligor shall cease to be Solvent.
11.1.10. Insolvency Proceedings. Any Insolvency Proceeding shall be commenced by any Obligor; an Insolvency
Proceeding is commenced against any Obligor and any of the following events occur: such Obligor consents to the
institution of the Insolvency Proceeding against it, the petition commencing the Insolvency Proceeding is not
timely controverted by such Obligor, the petition commencing the Insolvency Proceeding is not dismissed within 30
days after the date of the filing thereof (provided that, in any event, during the pendency of any such period,
Lenders shall be relieved from their obligation to make Loans or otherwise extend credit to or for the benefit of
Borrowers hereunder), an interim trustee is appointed to take possession all or a substantial portion of the
Properties of such Obligor or to operate all or any substantial portion of the business of such Obligor or an
order for relief shall have been issued or entered in connection with such Insolvency Proceeding; or any Obligor
shall make an offer of settlement extension or composition to its unsecured creditors generally.
11.1.11. Business Disruption; Condemnation. There shall occur a cessation of a substantial part of the business
of any Obligor for a period which may be reasonably expected to have a Material Adverse Effect; or any Obligor
shall suffer the loss or revocation of any license or permit now held or hereafter acquired by such Obligor which
is necessary to the continued or lawful operation of its business; or any Obligor shall be enjoined, restrained
or in any way prevented by court, governmental or administrative order from conducting all or any material part
of its business affairs; or any material lease or agreement pursuant to which any Obligor leases or occupies any
premises on which any Collateral is located shall be canceled or terminated prior to the expiration of its stated
term and such cancellation or termination has a Material Adverse Effect or results in an Out-of-Formula
Condition; or any material part of the Collateral shall be taken through condemnation or the value of such
Property shall be materially impaired through condemnation.
11.1.12. Change of Ownership. Tropical shall cease to own all of the issued and outstanding stock of TSCI,
Savane, Apparel, TSI and TSIL (other than pursuant to transactions permitted by Section 9.2.1 hereof).
11.1.13. ERISA. A Reportable Event shall occur which Agent, in its reasonable discretion, shall determine
constitutes grounds for the termination by the Pension Benefit Guaranty Corporation of any Plan or for the
appointment by the appropriate United States district court of a trustee for any Plan, or if any Plan shall be
terminated or any such trustee shall be requested or appointed, or if any Borrower, any Subsidiary or any Obligor
is in "default" (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan
resulting from such Borrower's, such Subsidiary's or such Obligor's complete or partial withdrawal from such Plan.
11.1.14. Challenge to Loan Documents. Any Obligor or any of its Affiliates shall challenge or contest in any
action, suit or proceeding the validity or enforceability of any of the Loan Documents, the legality or
enforceability of any of the Obligations or the perfection or priority of any Lien granted to Agent, or any of
the Loan Documents ceases to be in full force or effect for any reason other than a full or partial waiver or
release by Agent and Lenders in accordance with the terms thereof.
11.1.15. Judgment. One or more judgments or orders for the payment of money in an amount that exceeds,
individually or in the aggregate, the uncontested insurance available therefor by $1,000,000 or more shall be
entered against any Borrower or any other Obligor and (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order, (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect
or (iii) results in the creation or imposition of a Lien upon any of the Collateral that is not a Permitted Lien.
11.1.16. Repudiation of or Default Under Guaranty. Any Guarantor shall revoke or attempt to revoke the Guaranty
signed by such Guarantor, shall repudiate such Guarantor's liability thereunder, or shall be in default under the
terms thereof, or shall fail to confirm in writing, promptly after receipt of Agent's written request therefor,
such Guarantor's ongoing liability under the Guaranty in accordance with the terms thereof.
11.1.17. Criminal Forfeiture. Any Obligor shall be convicted under any criminal law that could lead to a
forfeiture of any Property of such Obligor.
11.1.18. Bank of America Loan Documents. A default or event of default shall occur under, or Tropical shall
default in the performance or observance of any term, covenant, condition or agreement contained in any of the
Bank of America Loan Documents and such default shall continue beyond any applicable grace period.
11.1.19. Senior Subordinated Notes. Any default or event of default shall occur under any of the Senior
Subordinated Notes, any Exchange Notes or the Senior Subordinated Indenture and such default shall continue
beyond any applicable grace period.
11.2. Acceleration of Obligations; Termination of Commitments. Without in any way limiting the right of Agent
to demand payment of any portion of the Obligations payable on demand in accordance with this Agreement:
11.2.1. Upon or at any time after the occurrence of an Event of Default (other than pursuant to Section 11.1.10
hereof) and for so long as such Event of Default shall exist, Agent may in its discretion (and, upon receipt of
written instructions to do so from the Required Lenders, shall) (a) declare the principal of and any accrued
interest on the Loans and all other Obligations owing under any of the Loan Documents to be, whereupon the same
shall become without further notice or demand (all of which notice and demand each Borrower expressly waives),
forthwith due and payable and Borrowers shall forthwith pay to Agent the entire principal of and accrued and
unpaid interest on the Loans and other Obligations plus reasonable attorneys' fees, expenses and court costs if
such principal and interest are collected by or through an attorney-at-law and (b) terminate the Commitments.
11.2.2. Upon the occurrence of an Event of Default specified in Section 11.1.10 hereof, all of the Obligations
shall become automatically due and payable without declaration, notice or demand by Agent to or upon any Borrower
and the Commitments shall automatically terminate as if terminated by Agent pursuant to Section 5.2.1 hereof and
with the effects specified in Section 5.2.4 hereof; provided, however, that, if Agent or Lenders shall continue
to make Loans or otherwise extend credit to Borrowers pursuant to this Agreement after an automatic termination
of the Commitments by reason of the commencement of an Insolvency Proceeding by or against Borrowers, such Loans
and other credit shall nevertheless be governed by this Agreement and enforceable against and recoverable from
each Obligor as if such Insolvency Proceeding had never been instituted.
11.3. Other Remedies. Upon and after the occurrence of an Event of Default and for so long as such Event of
Default shall exist, Agent may in its discretion (and, upon receipt of written direction of the Required Lenders,
shall) exercise from time to time the following rights and remedies (without prejudice to the rights of Agent or
any Lender to enforce its claim against any or all Obligors):
11.3.1. All of the rights and remedies of a secured party under the UCC or under other Applicable Law, and all
other legal and equitable rights to which Agent may be entitled under any of the Loan Documents, all of which
rights and remedies shall be cumulative and shall be in addition to any other rights or remedies contained in
this Agreement or any of the other Loan Documents, and none of which shall be exclusive.
11.3.2. The right to collect all amounts at any time payable to a Borrower from any Account Debtor or other
Person at any time indebted to such Borrower.
11.3.3. The right to take immediate possession of any of the Collateral, and to (i) require Borrowers to
assemble the Collateral, at Borrowers' expense, and make it available to Agent at a place designated by Agent
which is reasonably convenient to both parties, and (ii) enter any premises where any of the Collateral shall be
located and to keep and store the Collateral on said premises until sold (and if said premises be the Property of
a Borrower, then such Borrower agrees not to charge Agent for storage thereof).
11.3.4. The right to sell or otherwise dispose of all or any Collateral in its then condition, or after any
further manufacturing or processing thereof, at public or private sale or sales, with such notice as may be
required by Applicable Law, in lots or in bulk, for cash or on credit, all as Agent, in its sole discretion, may
deem advisable. Each Borrower agrees that any requirement of notice to any Borrower or any other Obligor of any
proposed public or private sale or other disposition of Collateral by Agent shall be deemed reasonable notice
thereof if given at least 10 days prior thereto, and such sale may be at such locations as Agent may designate in
said notice. Agent shall have the right to conduct such sales on any Borrower's or any other Obligor's premises,
without charge therefor, and such sales may be adjourned from time to time in accordance with Applicable Law.
Agent shall have the right to sell, lease or otherwise dispose of the Collateral, or any part thereof, for cash,
credit or any combination thereof, and Agent may purchase all or any part of the Collateral at public or, if
permitted by law, private sale and, in lieu of actual payment of such purchase price, may set off the amount of
such price against the Obligations. The proceeds realized from the sale or other disposition of any Collateral
may be applied, after allowing 2 Business Days for collection, first to any Extraordinary Expenses incurred by
Agent, second to interest accrued with respect to any of the Obligations; and third, to the principal balance of
the Obligations. If any deficiency shall arise, Obligors shall remain jointly and severally liable to Agent and
Lenders therefor.
11.3.5. The right to the appointment of a receiver, without notice of any kind whatsoever, to take possession of
all or any portion of the Collateral and to exercise such rights and powers as the court appointing such receiver
shall confer upon such receiver.
11.3.6. The right to require Borrowers to deposit with Agent funds equal to the LC Outstandings and, if
Borrowers fail promptly to make such deposit, Lenders may (and shall upon the direction of the Required Lenders)
advance such amount as a Revolver Loan (whether or not an Out-of-Formula Condition exists or is created
thereby). Any such deposit or advance shall be held by Agent as a reserve to fund future payments on any LC
Support. At such time as all LC Supports have been paid or terminated and all Letters of Credit have been drawn
upon or expired, any amounts remaining in such reserve shall be applied against any outstanding Obligations, or,
if all Obligations have been indefeasibly paid in full, returned to Borrowers.
Agent is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license
(exercisable without payment of royalty or other compensation to any Obligor or any other Person) any or all of
each Borrower's Intellectual Property and all of each Borrower's computer hardware and software trade secrets,
brochures, customer lists, promotional and advertising materials, labels, and packaging materials, and
any Property of a similar nature, in advertising for sale, marketing, selling and collecting and in completing the
manufacturing of any Collateral, and each Borrower's rights under all licenses and all franchise agreements shall
inure to Agent's benefit.
11.4. Setoff. In addition to any Liens granted under any of the Loan Documents and any rights now or
hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is
hereby authorized by Borrowers at any time that an Event of Default exists, without notice to Borrowers or any
other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all
deposits, general or special (including Debt evidenced by certificates of deposit whether matured or unmatured
(but not including trust accounts)) and any other Debt at any time held or owing by such Lender or any of their
Affiliates to or for the credit or the account of any Borrower against and on account of the Obligations of
Borrowers arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans
and LC Outstandings and all claims of any nature or description arising out of or in connection with this
Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder,
(ii) Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and
interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and
even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is
adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not,
without the express consent of the Required Lenders exercise its setoff rights hereunder against any accounts of
any Borrower now or hereafter maintained with Agent, such Lender or any Affiliate of any of them, but no Borrower
shall have any claim or cause of action against Agent or any Lender for any setoff made without the consent of
the Required Lenders and the validity of any such setoff shall not be impaired by the absence of such consent.
If any party (or its Affiliate) exercises the right of setoff provided for hereunder, such party shall be
obligated to share any such setoff in the manner and to the extent required by Section 12.5.
11.5. Remedies Cumulative; No Waiver.
11.5.1. All covenants, conditions, provisions, warranties, guaranties, indemnities, and other undertakings of
Borrowers contained in this Agreement and the other Loan Documents, or in any document referred to herein or
contained in any agreement supplementary hereto or in any schedule or in any Guaranty given to Agent or any
Lender or contained in any other agreement between Agent or any Lender and Borrowers, heretofore, concurrently,
or hereafter entered into, shall be deemed cumulative to and not in derogation or substitution of any of the
terms, covenants, conditions, or agreements of Borrowers herein contained. The rights and remedies of Agent and
Lenders under this Agreement and the other Loan Documents shall be cumulative and not exclusive of any rights or
remedies that Agent or any Lender would otherwise have.
11.5.2. The failure or delay of Agent or any Lender to require strict performance by Borrowers of any provision
of any of the Loan Documents or to exercise or enforce any rights, Liens, powers or remedies under any of the
Loan Documents or with respect to any Collateral shall not operate as a waiver of such performance, Liens,
rights, powers and remedies, but all such requirements, Liens, rights, powers, and remedies shall continue in
full force and effect until all Loans and all other Obligations owing or to become owing from Borrowers to Agent
and Lenders shall have been fully satisfied. None of the undertakings, agreements, warranties, covenants and
representations of Borrowers contained in this Agreement or any of the other Loan Documents and no Event of
Default by any Borrower under this Agreement or any other Loan Documents shall be deemed to have been suspended
or waived by Agent or any Lender, unless such suspension or waiver is by an instrument in writing specifying such
suspension or waiver and is signed by a duly authorized representative of Agent or such Lender and directed to
Borrowers.
11.5.3. If Agent or any Lender shall accept performance by a Borrower, in whole or in part, of any obligation
that a Borrower is required by any of the Loan Documents to perform only when a Default or Event of Default
exists, or if Agent or any Lender shall exercise any right or remedy under any of the Loan Documents that may not
be exercised other than when a Default or Event of Default exists, Agent's or Lender's acceptance of such
performance by a Borrower or Agent's or Lender's exercise of any such right or remedy shall not operate to waive
any such Event of Default or to preclude the exercise by Agent or any Lender of any other right or remedy, unless
otherwise expressly agreed in writing by Agent or such Lender, as the case may be.
Section 12. AGENT
12.1. Appointment, Authority and Duties of Agent.
12.1.1. Each Lender hereby irrevocably appoints and designates Fleet as Agent to act as herein specified. Agent
may, and each Lender by its acceptance of a Note shall be deemed irrevocably to have authorized Agent to, enter
into all Loan Documents to which Agent is or is intended to be a party and all amendments hereto and all Security
Documents at any time executed by any Borrower, for its benefit and the Pro Rata benefit of Lenders and, except
as otherwise provided in this Section 12, to exercise such rights and powers under this Agreement and the other
Loan Documents as are specifically delegated to Agent by the terms hereof and thereof, together with such other
rights and powers as are reasonably incidental thereto. Each Lender agrees that any action taken by Agent or the
Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the
exercise by Agent or the Required Lenders of any of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders.
Without limiting the generality of the foregoing, Agent shall have the sole and exclusive right and authority to
(a) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising
in connection with this Agreement and the other Loan Documents; (b) execute and deliver as Agent each Loan
Document and accept delivery of each such agreement delivered by any or all Borrowers or any other Obligor;
(c) act as collateral agent for Lenders for purposes of the perfection of all security interests and Liens created
by this Agreement or the Security Documents with respect to all material items of the Collateral and, subject to
the direction of the Required Lenders, for all other purposes stated therein, provided that Agent hereby
appoints, authorizes and directs each Lender to act as a collateral sub-agent for Agent and the other Lenders for
purposes of the perfection of all security interests and Liens with respect to a Borrower's Deposit Accounts
maintained with, and all cash and Cash Equivalents held by, such Lender; (d) subject to the direction of the
Required Lenders, manage, supervise or otherwise deal with the Collateral; and (e) except as may be otherwise
specifically restricted by the terms of this Agreement and subject to the direction of the Required Lenders,
exercise all remedies given to Agent with respect to any of the Collateral under the Loan Documents relating
thereto, Applicable Law or otherwise. The duties of Agent shall be ministerial and administrative in nature, and
Agent shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship with any
Lender (or any Lender's participants). Unless and until its authority to do so is revoked in writing by Required
Lenders, Agent alone shall be authorized to determine whether any Accounts or Inventory constitute
Eligible Accounts or Eligible Inventory (basing such determination in each case upon the meanings given to such
terms in Appendix A), or whether to impose or release any reserve, and to exercise its own credit judgment
in connection therewith, which determinations and judgments, if exercised in good faith, shall exonerate Agent
from any liability to Lenders or any other Person for any errors in judgment.
12.1.2. Agent (which term, as used in this sentence, shall include reference to Agent's officers, directors,
employees, attorneys, agents and Affiliates and to the officers, directors, employees, attorneys and agents of
Agent's Affiliates) shall not: (a) have any duties or responsibilities except those expressly set forth in this
Agreement and the other Loan Documents or (b) be required to take, initiate or conduct any litigation,
foreclosure or collection proceedings hereunder or under any of the other Loan Documents except to the extent
directed to do so by the Required Lenders during the continuance of any Event of Default. The conferral upon
Agent of any right hereunder shall not imply a duty on Agent's part to exercise any such right unless instructed
to do so by the Required Lenders in accordance with this Agreement.
12.1.3. Agent may perform any of its duties by or through its agents and employees and may employ one or more
Agent Professionals and shall not be responsible for the negligence or misconduct of any such Agent Professionals
selected by it with reasonable care. Borrowers shall promptly (and in any event, on demand) reimburse Agent for
all reasonable expenses (including all Extraordinary Expenses) incurred by Agent pursuant to any of the
provisions hereof or of any of the other Loan Documents or in the execution of any of Agent's duties hereby or
thereby created or in the exercise of any right or power herein or therein imposed or conferred upon it or
Lenders (excluding, however, general overhead expenses), and each Lender agrees promptly to pay to Agent, on
demand, such Lender's Pro Rata share of any such reimbursement for expenses (including Extraordinary Expenses)
that is not timely made by Borrowers to Agent.
12.1.4. The rights, remedies, powers and privileges conferred upon Agent hereunder and under the other Loan
Documents may be exercised by Agent without the necessity of the joinder of any other parties unless otherwise
required by Applicable Law. If Agent shall request instructions from the Required Lenders with respect to any
act or action (including the failure to act) in connection with this Agreement or any of the other Loan
Documents, Agent shall be entitled to refrain from such act or taking such action unless and until Agent shall
have received instructions from the Required Lenders; and Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Lender shall have any right of action whatsoever against
Agent as a result of Agent acting or refraining from acting hereunder or under any of the Loan Documents pursuant
to or in accordance with the instructions of the Required Lenders except for Agent's own gross negligence or
willful misconduct in connection with any action taken by it. Notwithstanding anything to the contrary contained
in this Agreement, Agent shall not be required to take any action that is in its opinion contrary to Applicable
Law or the terms of any of the Loan Documents or that would in its reasonable opinion subject it or any of its
officers, employees or directors to personal liability; provided, however, that if Agent shall fail or refuse to
take action that is not contrary to Applicable Law or to any of the terms of any of the Loan Documents even if
such action in Agent's opinion would subject it to potential liability, the Required Lenders may remove Agent and
appoint a successor Agent in the same manner and with the same effects as is provided in this Agreement with
respect to Agent's resignation.
12.1.5. Agent shall promptly, upon receipt thereof, forward to each Lender (i) copies of any significant written
notices, reports, certificates and other information received by Agent from any Obligor (but only if and to the
extent such Obligor is not required by the terms of the Loan Documents to supply such information directly to
Lenders) and (ii) copies of the results of any field audits by Agent (or any other Person commissioned by Agent)
with respect to Borrowers. Agent shall (i) conduct not less than 2 field audits during Borrower's Fiscal Year
2003, (ii) conduct not less than 1 field audit during each of Borrower's Fiscal Years after Fiscal Year 2003, and
(iii) conduct not less than 1 Orderly Liquidation Value Appraisal of Borrower's Inventory per year. Agent shall
have no liability to any Lender for any delays in conducting or errors in or omissions from any field audit,
appraisal or other examination of Borrowers or the Collateral, unless such delay or error or omission was the
direct result of Agent's willful misconduct or gross negligence.
12.2. Agreements Regarding Collateral and Examination Reports.
12.2.1. Lenders hereby irrevocably authorize Agent, at its option and in its discretion, to release any Lien
upon any Collateral (i) upon the termination of the Commitments and payment or satisfaction of all of the
Obligations, (ii) constituting Equipment sold or disposed of in accordance with the terms of this Agreement if
Borrowers certify to Agent that the disposition is made in compliance with the terms of this Agreement (and Agent
may rely conclusively on any such certificate, without further inquiry), or (iii) if approved or ratified by the
Required Lenders. Agent shall, if directed to do so by the Required Lenders, release any Lien upon any
Collateral having a value of less than $5,000,000 in the aggregate during any 12-month period. Except as
expressly authorized or required by this Section 12.2.1 or otherwise by this Agreement or Applicable Law, Agent
shall not execute any release or termination of any Lien upon any of the Collateral without the prior written
authorization of all Lenders. Agent shall have no obligation whatsoever to any of the Lenders to assure that any
of the Collateral exists or is owned by a Borrower or is cared for, protected or insured or has been encumbered,
or that Agent's Liens have been properly, sufficiently or lawfully created, perfected, protected or enforced or
entitled to any particular priority or to exercise any duty of care with respect to any of the Collateral.
12.2.2. Agent shall furnish each Lender, promptly after the same becomes available, a copy of each field audit
or examination report (each a "Report" and collectively, "Reports") prepared by or on behalf of Agent. Each
Lender agrees that neither Fleet nor Agent makes any representation or warranty as to the accuracy or
completeness of any Report and shall not be liable for any information contained in or omitted from any such
Report; agrees that the Reports are not intended to be comprehensive audits or examinations, that Fleet or Agent
or any other Person performing any audit or examination will inspect only specific information regarding
Borrowers or the Collateral and will rely significantly upon Borrowers' books and records as well as upon
representations of Borrowers' officers and employees; agrees to keep all Reports confidential and strictly for
its internal use and not to distribute the Reports to any Person (except to its Participants, attorneys,
accountants and other Persons with whom such Lender has a confidential relationship) or use any Report in any
other manner; and, without limiting the generality of any other indemnification contained herein, agrees to hold
Agent and any other Person preparing a Report harmless from any action that the indemnifying Lender may take or
conclusion the indemnifying Lender may reach or draw from any Report in connection with any Loans or other credit
accommodations that the indemnifying Lender has made or may make to Borrowers, or the indemnifying Lender's
participation in, or its purchase of, a loan or loans of Borrowers, and to pay and protect, and indemnify, defend
and hold Agent and each other such Person preparing a Report harmless from and against all claims, actions,
proceedings, damages, costs, expenses and other amounts (including attorneys' fees incurred by Agent and any such
other Person preparing a Report) as the direct or indirect result of any third parties who obtain all or any part
of any Report through the indemnifying Lender.
12.3. Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in so relying, upon
any certification, notice or other communication (including any thereof by telephone, telex, telegram, telecopier
message or cable) believed by it to be genuine and correct and to have been signed, sent or made by or on behalf
of the proper Person or Persons, and upon advice and statements of Agent Professionals selected by Agent. As to
any matters not expressly provided for by this Agreement or any of the other Loan Documents, Agent shall in all
cases be fully protected in acting or refraining from acting hereunder and thereunder in accordance with
the instructions of the Required Lenders, and such instructions of the Required Lenders and any action taken or
failure to act pursuant thereto shall be binding upon Lenders.
12.4. Action Upon Default. Agent shall not be deemed to have knowledge of the occurrence of a Default or an
Event of Default unless it has received written notice from a Lender or any or all Borrowers specifying the
occurrence and nature of such Default or Event of Default. If Agent shall receive such a notice of a Default or
an Event of Default or shall otherwise acquire actual knowledge of any Default or Event of Default, Agent shall
promptly notify Lenders in writing and Agent shall take such action and assert such rights under this Agreement
and the other Loan Documents, or shall refrain from taking such action and asserting such rights, as the Required
Lenders shall direct from time to time. If any Lender shall receive a notice of a Default or an Event of Default
or shall otherwise acquire actual knowledge of any Default or Event of Default, such Lender shall promptly notify
Agent and the other Lenders in writing. As provided in Section 12.3 hereof, Agent shall not be subject to any
liability by reason of acting or refraining to act pursuant to any request of the Required Lenders except for its
own willful misconduct or gross negligence in connection with any action taken by it. Before directing Agent to
take or refrain from taking any action or asserting any rights or remedies under this Agreement and the other
Loan Documents on account of any Event of Default, the Required Lenders shall consult with and seek the advice of
(but without having to obtain the consent of) each other Lender, and promptly after directing Agent to take or
refrain from taking any such action or asserting any such rights, the Required Lenders will so advise each other
Lender of the action taken or refrained from being taken and, upon request of any Lender, will supply information
concerning actions taken or not taken. In no event shall the Required Lenders, without the prior written consent
of each Lender, direct Agent to accelerate and demand payment of the Loans held by one Lender without
accelerating and demanding payment of all other Loans or to terminate the Commitments of one or more Lenders
without terminating the Commitments of all Lenders. Each Lender agrees that, except as otherwise provided in any
of the Loan Documents or with the written consent of the Required Lenders, it will not take any legal action or
institute any action or proceeding against any Obligor with respect to any of the Obligations or Collateral or
accelerate or otherwise enforce its portion of the Obligations. Without limiting the generality of the
foregoing, none of Lenders may exercise any right that it might otherwise have under Applicable Law to credit bid
at foreclosure sales, UCC sales or other similar sales or dispositions of any of the Collateral except as
authorized by the Required Lenders. Notwithstanding anything to the contrary set forth in this Section 12.4 or
elsewhere in this Agreement, each Lender shall be authorized to take such action to preserve or enforce its
rights against any Obligor where a deadline or limitation period is otherwise applicable and would, absent the
taken of specified action, bar the enforcement of Obligations held by such Lender against such Obligor, including
the filing of proofs of claim in any Insolvency Proceeding.
12.5. Ratable Sharing. If any Lender shall obtain any payment or reduction (including any amounts received as
adequate protection of a bank account deposit treated as cash collateral under the Bankruptcy Code) of any
Obligation of Borrowers hereunder (whether voluntary, involuntary, through the exercise of any right of set-off
or otherwise) in excess of its Pro Rata share of payments or reductions on account of such Obligations obtained
by all of the Lenders, such Lender shall forthwith (i) notify the other Lenders and Agent of such receipt and
(ii) purchase from the other Lenders such participations in the affected Obligations as shall be necessary to
cause such purchasing Lender to share the excess payment or reduction, net of costs incurred in connection
therewith, on a Pro Rata basis, provided that if all or any portion of such excess payment or reduction is
thereafter recovered from such purchasing Lender or additional costs are incurred, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery or such additional costs, but without
interest. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to
this Section 12.5 may, to the fullest extent permitted by Applicable Law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as if such Lender were the direct
creditor of Borrowers in the amount of such participation.
12.6. Indemnification of Agent Indemnitees.
12.6.1. Each Lender agrees to indemnify and defend the Agent Indemnitees (to the extent not reimbursed by
Borrowers under this Agreement, but without limiting the indemnification obligation of Borrowers under this
Agreement), on a Pro Rata basis, and to hold each of the Agent Indemnitees harmless from and against, any and all
Indemnified Claims which may be imposed on, incurred by or asserted against any of the Agent Indemnitees in any
way related to or arising out of this Agreement or any of the other Loan Documents or any other document
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby (including
the costs and expenses which Borrowers are obligated to pay under Section 14.2 hereof or amounts Agent may be
called upon to pay in connection with any lockbox or Dominion Account arrangement contemplated hereby or under
any indemnity, guaranty or other assurance of payment or performance given by Agent with respect to Cash
Management Agreements, Hedging Agreements and Letters of Credit) or the enforcement of any of the terms hereof or
thereof or of any such other documents, provided that no Lender shall be liable to any Agent Indemnitee for any
of the foregoing to the extent that they result solely from the willful misconduct or gross negligence of such
Agent Indemnitee.
12.6.2. Without limiting the generality of the foregoing provisions of this Section 12.6, if Agent should be
sued by any receiver, trustee in bankruptcy, debtor-in-possession or other Person on account of any alleged
preference or fraudulent transfer received or alleged to have been received from any Borrower or any other
Obligor as the result of any transaction under the Loan Documents, then in such event any monies paid by Agent in
settlement or satisfaction of such suit, together with all Extraordinary Expenses incurred by Agent in the
defense of same, shall be promptly reimbursed to Agent by Lenders to the extent of each Lender's Pro Rata share.
12.6.3. Without limiting the generality of the foregoing provisions of this Section 12.6, if at any time
(whether prior to or after the Commitment Termination Date) any action or proceeding shall be brought against any
of the Agent Indemnitees by an Obligor or by any other Person claiming by, through or under an Obligor, to
recover damages for any act taken or omitted by Agent under any of the Loan Documents or in the performance of
any rights, powers or remedies of Agent against any Obligor, any Account Debtor, the Collateral or with respect
to any Loans, or to obtain any other relief of any kind on account of any transaction involving any Agent
Indemnitees under or in relation to any of the Loan Documents, each Lender agrees to indemnify, defend and hold
the Agent Indemnitees harmless with respect thereto and to pay to the Agent Indemnitees such Lender's Pro Rata
share of such amount as any of the Agent Indemnitees shall be required to pay by reason of a judgment, decree, or
other order entered in such action or proceeding or by reason of any compromise or settlement agreed to by the
Agent Indemnitees, including all interest and costs assessed against any of the Agent Indemnitees in defending or
compromising such action, together with attorneys' fees and other legal expenses paid or incurred by the Agent
Indemnitees in connection therewith; provided, however, that no Lender shall be liable to any Agent Indemnitee
for any of the foregoing to the extent that they arise solely from the willful misconduct or gross negligence of
such Agent Indemnitee. In Agent's discretion, Agent may also reserve for or satisfy any such judgment, decree or
order from proceeds of Collateral prior to any distributions therefrom to or for the account of Lenders.
12.7. Limitation on Responsibilities of Agent. Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall have received further assurances to its satisfaction from Lenders of
their indemnification obligations under Section 12.6 hereof against any and all Indemnified Claims which may be
incurred by Agent by reason of taking or continuing to take any such action. Agent shall not be liable to
Lenders (or any Lender's participants) for any action taken or omitted to be taken under or in connection with
this Agreement or the other Loan Documents except as a result of actual gross negligence or willful misconduct on
the part of Agent. Agent does not assume any responsibility for any failure or delay in performance or breach by
any Obligor or any Lender of its obligations under this Agreement or any of the other Loan Documents. Agent does
not make to Lenders, and no Lender makes to Agent or the other Lenders, any express or implied warranty,
representation or guarantee with respect to the Loans, the Collateral, the Loan Documents or any Obligor.
Neither Agent nor any of its officers, directors, employees, attorneys or agents shall be responsible to Lenders,
and no Lender nor any of its agents, attorneys or employees shall be responsible to Agent or the other Lenders,
for: (i) any recitals, statements, information, representations or warranties contained in any of the Loan
Documents or in any certificate or other document furnished pursuant to the terms hereof; (ii) the execution,
validity, genuineness, effectiveness or enforceability of any of the Loan Documents; (iii) the validity,
genuineness, enforceability, collectibility, value, sufficiency or existence of any Collateral, or the perfection
or priority of any Lien therein; or (iv) the assets, liabilities, financial condition, results of operations,
business, creditworthiness or legal status of any Obligor or any Account Debtor. Neither Agent nor any of its
officers, directors, employees, attorneys or agents shall have any obligation to any Lender to ascertain or
inquire into the existence of any Default or Event of Default, the observance or performance by any Obligor of
any of the duties or agreements of such Obligor under any of the Loan Documents or the satisfaction of any
conditions precedent contained in any of the Loan Documents. Agent may consult with and employ legal counsel,
accountants and other experts and shall be entitled to act upon, and shall be fully protected in any action taken
in good faith reliance upon, any advice given by such experts.
12.8. Successor Agent and Co-Agents.
12.8.1. Subject to the appointment and acceptance of a successor Agent as provided below, Agent may resign at
any time by giving at least 30 days written notice thereof to each Lender and Borrowers. Upon receipt of any
notice of such resignation, the Required Lenders, after prior consultation with (but without having to obtain
consent of) each Lender, shall have the right to appoint a successor Agent which shall be (i) a Lender, (ii) a
United States based affiliate of a Lender, or (iii) a commercial bank that is organized under the laws of the
United States or of any State thereof and has a combined capital surplus of at least $200,000,000 and, provided
no Default or Event of Default then exists, is reasonably acceptable to Borrowers (and for purposes hereof, any
successor to Fleet shall be deemed acceptable to Borrowers). Upon the acceptance by a successor Agent of an
appointment to serve as an Agent hereunder, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent without further act, deed or conveyance,
and the retiring Agent shall be discharged from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Section 12 (including the provisions of Section 12.6
hereof) shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent. Notwithstanding anything to the contrary contained in this Agreement, any
successor by merger or acquisition of the stock or assets of Fleet shall continue to be Agent hereunder without
further act on the part of the parties hereto unless such successor shall resign in accordance with the
provisions hereof. If Fleet shall sell all of its Commitment and Obligations owing to it as part of a sale,
transfer or other disposition by Fleet of substantially all of its loan portfolio, Fleet shall resign as Agent
and such purchaser or transferee shall become the successor Agent hereunder.
12.8.2. It is the purpose of this Agreement that there shall be no violation of any Applicable Law denying or
restricting the right of financial institutions to transact business as agent or otherwise in any jurisdiction.
It is recognized that, in case of litigation under any of the Loan Documents, or in case Agent deems that by
reason of present or future laws of any jurisdiction Agent might be prohibited from exercising any of the powers,
rights or remedies granted to Agent or Lenders hereunder or under any of the Loan Documents or from holding title
to or a Lien upon any Collateral or from taking any other action which may be necessary hereunder or under any of
the Loan Documents, Agent may appoint an additional Person as a separate collateral agent or co-collateral agent
which is not so prohibited from taking any of such actions or exercising any of such powers, rights or remedies.
If Agent shall appoint an additional Person as a separate collateral agent or co-collateral agent as provided
above, each and every remedy, power, right, claim, demand or cause of action intended by any of the Loan
Documents to be exercised by or vested in or conveyed to Agent with respect thereto shall be exercisable by and
vested in such separate collateral agent or co-collateral agent, but only to the extent necessary to enable such
separate collateral agent or co-collateral agent to exercise such powers, rights and remedies, and every covenant
and obligation necessary to the exercise thereof by such separate collateral agent or co-collateral agent shall
run to and be enforceable by either of them. Should any instrument from Lenders be required by the separate
collateral agent or co-collateral agent so appointed by Agent in order more fully and certainly to vest in and
confirm to him or it such rights, powers, duties and obligations, any and all of such instruments shall, on
request, be executed, acknowledged and delivered by Lenders whether or not a Default or Event of Default then
exists. In case any separate collateral agent or co-collateral agent, or a successor to either, shall die,
become incapable of acting, resign or be removed, all the estates, properties, rights, powers, duties and
obligations of such separate collateral agent or co-collateral agent, so far as permitted by Applicable Law,
shall vest in and be exercised by the Agent until the appointment of a new collateral agent or successor to such
separate collateral agent or co-collateral agent.
12.9. Consents, Amendments and Waivers; Out-of-Formula Loans.
12.9.1. No amendment or modification of any provision of this Agreement shall be effective without the prior
written agreement of the Required Lenders and Borrowers, and no waiver of any Default or Event of Default shall
be effective without the prior written consent of the Required Lenders; provided, however, that (i) without the
prior written consent of Agent, no amendment or waiver shall be effective with respect to any provision in any of
the Loan Documents (including this Section 12) to the extent such provision relates to the rights, duties or
immunities of Agent; (ii) without the prior written consent of Fleet, no amendment or waiver with respect to the
provisions of Sections 1.3 or 3.1.3 shall be effective; (iii) without the prior written consent of all Lenders,
no waiver of any Default or Event of Default shall be effective if the Default or Event of Default relates to any
Borrower's failure to observe or perform any covenant that may not be amended without the unanimous written
consent of Lenders (and, where so provided hereinafter, the written consent of Agent) as hereinafter set forth in
this Section 12.9.1; and (iv) written agreement of all Lenders (except a defaulting Lender as provided in
Section 3.2 of this Agreement) shall be required to effectuate any amendment, modification or waiver that would
(a) alter the provisions of Sections 2.2, 2.4, 2.6, 2.7, 2.8, 2.9, 4.5, 4.6, 4.7, 4.9, 4.10, 5.1, 12, 13, 14.2,
14.3 or 14.14, (b) amend the definitions of "Pro Rata," "Required Lenders," "Availability Reserve" or "Borrowing
Base" (and the other defined terms used in such definitions), or any provision of this Agreement obligating Agent
to take certain actions at the direction of the Required Lenders, or any provision of any of the Loan Documents
regarding the Pro Rata treatment or obligations of Lenders, (c) increase or otherwise modify any of the
Commitments (other than to reduce proportionately each Lender's Commitment in connection with any overall
reduction in the amount of the Commitments), (d) alter or amend (other than to increase) the rate of interest
payable in respect of the Loans (except as may be expressly authorized by the Loan Documents or as may be
necessary, in Agent's judgment, to comply with Applicable Law), (e) waive or agree to defer collection of any
fee, termination charge or other charge provided for under any of the Loan Documents or the unused line fee in
Section 2.2.3 hereof, (f) subordinate the payment of any of the Obligations to any other Debt or the priority of
any Liens granted to Agent under any of the Loan Documents to Liens granted to any other Person, except as
currently provided in or contemplated by the Loan Documents in connection with Borrowers' incurrence of Permitted
Purchase Money Debt, and except for Liens granted by an Obligor to financial institutions with respect to amounts
on deposit with such financial institutions to cover returned items, processing and analysis charges and other
charges in the Ordinary Course of Business that relate to deposit accounts with such financial institutions,
(g) alter the time or amount of repayment of any of the Loans or waive any Event of Default resulting from
nonpayment of the Loans on the due date thereof (or within any applicable period of grace), (h) forgive any of
the Obligations, except any portion of the Obligations held by a Lender who consents in writing to such
forgiveness, or (i) release any Obligor from liability for any of the Obligations or release any material portion
of the Collateral except to the extent expressly provided for herein. No Lender shall be authorized to amend or
modify any Note held by it, unless such amendment or modification is consented to in writing by all Lenders;
provided, however, that the foregoing shall not be construed to prohibit an amendment or modification to
any provision of this Agreement that may be effected pursuant to this Section 12.9.1 by agreement of Borrowers and
the Required Lenders even though such an amendment or modification results in an amendment or modification of the
Notes by virtue of the incorporation by reference in each of the Notes of this Agreement. The making of any
Loans hereunder by any Lender during the existence of a Default or Event of Default shall not be deemed to
constitute a waiver of such Default or Event of Default. Any waiver or consent granted by Lenders hereunder
shall be effective only if in writing and then only in the specific instance and for the specific purpose for
which it was given.
12.9.2. In connection with any proposed amendment to any of the Loan Documents or waiver of any of the terms
thereof or any Default or Event of Default thereunder, no Borrower shall solicit, request or negotiate for or
with respect to any such proposed amendment or waiver of any of the provisions of this Agreement or any of the
other Loan Documents unless each Lender shall be informed thereof by Borrowers or Agent (to the extent known by
Agent) and shall be afforded an opportunity of considering the same and supplied by Borrowers with sufficient
information to enable it to make an informed decision with respect thereto. No Borrower will, directly or
indirectly, pay or cause to be paid any remuneration or other thing of value, whether by way of supplemental or
additional interest, fee or otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for
or as an inducement to the consent to or agreement by such Lender with any waiver or amendment of any of the
terms and provisions of this Agreement or any of the other Loan Documents to the extent that the agreement of all
Lenders to any such waiver or amendment is required, unless such remuneration or thing of value is concurrently
paid, on the same terms, on a Pro Rata basis to all Lenders; provided, however, that Borrowers may contract to
pay a fee only to those Lenders who actually vote in writing to approve any waiver or amendment of the terms and
provisions of this Agreement or any of the other Loan Documents to the extent that such waiver or amendment may
be implemented by vote of the Required Lenders and such waiver or amendment is in fact approved.
12.9.3. Any request, authority or consent of any Person who, at the time of making such request or giving such
a authority or consent, as a Lender, shall be conclusive and binding upon any Assignee of such Lender.
12.9.4. Unless otherwise directed in writing by the Required Lenders, Agent may require Lenders to honor
requests by Borrowers for Out-of-Formula Loans (in which event, and notwithstanding anything to the contrary set
forth in Section 1.1.1 or elsewhere in this Agreement, Lenders shall continue to make Revolver Loans up to their
Pro Rata share of the Commitments) and to forbear from requiring Borrowers to cure an Out-of-Formula Condition,
(1) when no Event of Default exists (or if an Event of Default exists, when the existence of such Event of
Default is not known by Agent), if and for so long as (i) such Out-of-Formula Condition does not continue for a
period of more than 15 consecutive days, following which no Out-of-Formula Condition exists for at least
15 consecutive days before another Out-of-Formula Condition exists, (ii) the amount of the Revolver Loans
outstanding at any time does not exceed the aggregate of the Commitments at such time, and (iii) the
Out-of-Formula Condition is not known by Agent at the time in question to exceed $2,000,000; and (2) regardless
of whether or not an Event of Default exists, if Agent discovers the existence of an Out-of-Formula Condition not
previously known by it to exist, but Lenders shall be obligated to continue making such Revolver Loans as
directed by Agent only (i) if the amount of the Out-of-Formula Condition is not increased by more than $1,000,000
above the amount determined by Agent to exist on the date of discovery thereof and (ii) for a period not to
exceed 5 Business Days. In no event shall Agent require Lenders to make Out-of-Formula Loans under clause (1) of
this Section 12.9.4 more than 7 times per calendar year. In no event shall any Borrower or any other Obligor be
deemed to be a beneficiary of this Section 12.9.4 or authorized to enforce any of the provisions of this Section
12.9.4.
12.10. Due Diligence and Non-Reliance. Each Lender hereby acknowledges and represents that it has,
independently and without reliance upon Agent or the other Lenders, and based upon such documents, information
and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to
enter into this Agreement and to fund the Loans to be made by it hereunder and to purchase participations in the
LC Outstandings pursuant to Section 1.3.2 hereof, and each Lender has made such inquiries concerning the Loan
Documents, the Collateral and each Obligor as such Lender feels necessary and appropriate, and has taken such
care on its own behalf as would have been the case had it entered into the other Loan Documents without the
intervention or participation of the other Lenders or Agent. Each Lender hereby further acknowledges and
represents that the other Lenders and Agent have not made any representations or warranties to it concerning any
Obligor, any of the Collateral or the legality, validity, sufficiency or enforceability of any of the Loan
Documents. Each Lender also hereby acknowledges that it will, independently and without reliance upon the other
Lenders or Agent, and based upon such financial statements, documents and information as it deems appropriate at
the time, continue to make and rely upon its own credit decisions in making Loans and in taking or refraining
to take any other action under this Agreement or any of the other Loan Documents. Except for notices, reports and
other information expressly required to be furnished to Lenders by Agent hereunder, Agent shall not have any duty
or responsibility to provide any Lender with any notices, reports or certificates furnished to Agent by any
Obligor or any credit or other information concerning the affairs, financial condition, business or Properties of
any Obligor (or any of its Affiliates) which may come into possession of Agent or any of Agent's Affiliates.
12.11. Representations and Warranties of Lenders. By its execution of this Agreement, each Lender hereby
represents and warrants to each Borrower and the other Lenders that it has the power to enter into and perform
its obligations under this Agreement and the other Loan Documents, and that it has taken all necessary and
appropriate action to authorize its execution and performance of this Agreement and the other Loan Documents to
which it is a party, each of which will be binding upon it and the obligations imposed upon it herein or therein
will be enforceable against it in accordance with the respective terms of such documents.
12.12. The Required Lenders. As to any provisions of this Agreement or the other Loan Documents under which
action may or is required to be taken upon direction or approval of the Required Lenders, the direction or
approval of the Required Lenders shall be binding upon each Lender to the same extent and with the same effect
as if each Lender had joined therein. Notwithstanding anything to the contrary contained in this Agreement,
Borrowers shall not be deemed to be a beneficiary of, or be entitled to enforce, xxx upon or assert as a defense
to any of the Obligations, any provisions of this Agreement that requires Agent or any Lender to act, or
conditions their authority to act, upon the direction or consent of the Required Lenders; and any action taken by
Agent or any Lender that requires the consent or direction of the Required Lenders as a condition to taking such
action shall, insofar as Borrowers are concerned, be presumed to have been taken with the requisite consent or
direction of the Required Lenders.
12.13. Several Obligations. The obligations and commitments of each Lender under this Agreement and the other
Loan Documents are several and neither Agent nor any Lender shall be responsible for the performance by the other
Lenders of its obligations or commitments hereunder or thereunder. Notwithstanding any liability of Lenders
stated to be joint and several to third Persons under any of the Loan Documents, such liability shall be shared,
as among Lenders, Pro Rata according to the respective Commitments of Lenders.
12.14. Agent in its Individual Capacity. With respect to its obligation to lend under this Agreement, the
Loans made by it and each Note issued to it, Agent shall have the same rights and powers hereunder and under the
other Loan Documents as any other Lender or holder of a Note and may exercise the same as though it were not
performing the duties specified herein; and the terms "Lenders," "Required Lenders," or any similar term shall,
unless the context clearly otherwise indicates, include Agent in its capacity as a Lender. Agent and its
Affiliates may each accept deposits from, maintain deposits or credit balances for, invest in, lend money to, act
as trustee under indentures of, serve as financial advisor to, and generally engage in any kind of business with
any Borrower or any other Obligor, or any affiliate of any Borrower or any other Obligor, as if it were any other
bank and without any duty to account therefor (or for any fees or other consideration received in connection
therewith) to the other Lenders. Fleet or its affiliates may receive information regarding any Borrower or any
of such Borrower's Affiliates and account debtors (including information that may be subject to confidentiality
obligations in favor of Borrowers or any of their Affiliates) and Lenders acknowledge that neither Agent nor
Fleet shall be under any obligation to provide such information to Lenders to the extent acquired by Fleet in its
individual capacity and not as Agent hereunder.
12.15. No Third Party Beneficiaries. This Section 12 is not intended to confer any rights or benefits upon
Borrowers or any other Person except Lenders and Agent, and no Person (including any or all Borrowers) other than
Lenders and Agent shall have any right to enforce any of the provisions of this Section 12 except as expressly
provided in Section 12.17 hereof. As between Borrowers and Agent, any action that Agent may take or purport to
take on behalf of Lenders under any of the Loan Documents shall be conclusively presumed to have been authorized
and approved by Lenders as herein provided.
12.16. Notice of Transfer. Agent may deem and treat a Lender party to this Agreement as the owner of such
Lender's portion of the Revolver Loans for all purposes, unless and until a written notice of the assignment or
transfer thereof executed by such Lender has been received by Agent.
12.17. Replacement of Certain Lenders. If a Lender ("Affected Lender") shall have (i) failed to fund its Pro
Rata share of any Revolver Loan requested (or deemed requested) by Borrowers which such Lender is obligated to
fund under the terms of this Agreement and which such failure has not been cured, (ii) requested compensation
from Borrowers under Section 2.7 to recover increased costs incurred by such Lender (or its parent or holding
company) which are not being incurred generally by the other Lenders (or their respective parents or holding
companies), or (iii) delivered a notice pursuant to Section 2.6 hereof claiming that such Lender is unable to
extend LIBOR Loans to Borrowers for reasons not generally applicable to the other Lenders, then, in any such case
and in addition to any other rights and remedies that Agent, any other Lender or any Borrower may have against
such Affected Lender, any Borrower or Agent may make written demand on such Affected Lender (with a copy to Agent
in the case of a demand by Borrowers and a copy to Borrowers in the case of a demand by Agent) for the Affected
Lender to assign, and such Affected Lender shall assign pursuant to one or more duly executed Assignment and
Acceptances within 5 Business Days after the date of such demand, to one or more Lenders willing to accept such
assignment or assignments, or to one or more Eligible Assignees designated by Agent, all of such Affected
Lender's rights and obligations under this Agreement (including its Commitments and all Loans owing to it) in
accordance with Section 13 hereof. Agent is hereby irrevocably authorized to execute one or more Assignment and
Acceptances as attorney-in-fact for any Affected Lender which fails or refuses to execute and deliver the same
within 5 Business Days after the date of such demand. The Affected Lender shall be entitled to receive, in cash
and concurrently with execution and delivery of each such Assignment and Acceptance, all amounts owed to the
Affected Lender hereunder or under any other Loan Document, including the aggregate outstanding principal amount
of the Revolver Loans owed to such Lender, together with accrued interest thereon through the date of such
assignment. Upon the replacement of any Affected Lender pursuant to this Section 12.17, such Affected Lender
shall cease to have any participation in, entitlement to, or other right to share in the Liens of Agent in any
Collateral and such Affected Lender shall have no further liability to Agent, any Lender or any other Person
under any of the Loan Documents (except as provided in Section 12.6 hereof as to events or transactions which
occur prior to the replacement of such Affected Lender), including any commitment to make Loans or purchase
participations in LC Outstandings.
12.18. Remittance of Payments and Collections.
12.18.1. All payments by any Lender to Agent shall be made not later than the time set forth elsewhere in this
Agreement on the Business Day such payment is due; provided, however, that if such payment is due on demand by
Agent and such demand is made on the paying Lender after 12:00 noon on such Business Day, then payment shall be
made by 12:00 noon on the next Business Day. Payment by Agent to any Lender shall be made by wire transfer,
promptly following Agent's receipt of funds for the account of such Lender and in the type of funds received by
Agent; provided, however, that if Agent receives such funds at or prior to 12:00 noon, Agent shall pay such funds
to such Lender by 2:00 p.m. on such Business Day, but if Agent receives such funds after 12:00 noon, Agent shall
pay such funds to such Lender by 2:00 p.m. on the next Business Day.
12.18.2. With respect to the payment of any funds from Agent to a Lender or from a Lender to Agent, the party
failing to make full payment when due pursuant to the terms hereof shall, on demand by the other party, pay such
amount together with interest thereon at the Federal Funds Rate. In no event shall Borrowers be entitled to
receive any credit for any interest paid by Agent to any Lender, or by any Lender to Agent, at the Federal Funds
Rate as provided herein.
12.18.3. If Agent pays any amount to a Lender in the belief or expectation that a related payment has been or
will be received by Agent from an Obligor and such related payment is not received by Agent, then Agent shall be
entitled to recover such amount from each Lender that receives such amount. If Agent determines at any time that
any amount received by it under this Agreement or any of the other Loan Documents must be returned to an Obligor
or paid to any other Person pursuant to any Applicable Law, court order or otherwise, then, notwithstanding any
other term or condition of this Agreement or any of the other Loan Documents, Agent shall not be required to
distribute such amount to any Lender.
Section 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
13.1. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrowers,
Agent and Lenders and their respective successors and assigns (which, in the case of Agent, shall include any
successor Agent appointed pursuant to Section 12.8 hereof), except that (i) no Borrower shall have the right to
assign its rights or delegate performance of any of its obligations under any of the Loan Documents and (ii) any
assignment by any Lender must be made in compliance with Section 13.3 hereof. Agent may treat the payee of any
Note as the owner thereof for all purposes hereof unless and until such payee complies with Section 13.3 in the
case of an assignment thereof or, in the case of any other transfer, a written notice of the transfer is filed
with Agent. Any assignee or transferee of a Note agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making
such request or giving such authority or consent is the holder of a Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes issued in exchange therefor.
13.2. Participations.
13.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary course of its business and in
accordance with Applicable Law, at any time sell to one or more banks or other financial institutions (each a
"Participant") a participating interest in any of the Obligations owing to such Lender, any Commitment of such
Lender or any other interest of such Lender under any of the Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, such Lender shall remain the holder of any Note for all purposes under the Loan Documents, all
amounts payable by Borrowers under this Agreement and any of the Notes shall be determined as if such Lender had
not sold such participating interests, and Borrowers and Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under the Loan Documents. If a Lender sells
a participation to a Person other than an Affiliate of such Lender, then such Lender shall give prompt written
notice thereof to Borrowers and the other Lenders. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 4.9 unless Borrowers are notified of the participation
sold to Participant and such Participant agrees, for the benefit of Borrowers, to comply with Section 4.10 as
though such Participant were a Lender.
13.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any provision of the Loan Documents other than an
amendment, modification or waiver with respect to any Loans or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the stated interest rate or the stated rates at
which fees are payable with respect to any such Loan or Commitment, postpones the Commitment Termination Date, or
any date fixed for any regularly scheduled payment of interest or fees on such Revolver Loan or Commitment, or
releases from liability any Borrower or any Guarantor or releases any substantial portion of any of the
Collateral.
13.2.3. Benefit of Set-Off. Each Borrower agrees that each Participant shall be deemed to have the right of
set-off provided in Section 11.4 hereof in respect of its participating interest in amounts owing under the Loan
Documents to the same extent and subject to the same requirements under this Agreement (including Section 12.5)
as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of set-off provided in Section 11.4 hereof with respect to the
amount of participating interests sold to each Participant. Lenders agree to share with each Participant, and
each Participant by exercising the right of set-off provided in Section 11.4 agrees to share with each Lender,
any amount received pursuant to the exercise of its right of set-off, such amounts to be shared in accordance
with Section 12.5 hereof as if each Participant were a Lender.
13.2.4. Notices. Each Lender shall be solely responsible for notifying its Participants of any matters relating
to the Loan Documents to the extent that any such notice may be required, and neither Agent nor any other Lender
shall have any obligation, duty or liability to any Participant of any other Lender. Without limiting the
generality of the foregoing, neither Agent nor any Lender shall have any obligation to give notices or to provide
documents or information to a Participant of another Lender.
13.3. Assignments.
13.3.1. Permitted Assignments. Subject to its compliance with Section 13.3.2, a Lender may, in accordance with
Applicable Law, at any time assign to any Eligible Assignee all or any part of its rights and obligations under
the Loan Documents, so long as (i) each assignment is of a constant, and not a varying, ratable percentage of all
of the transferor Lender's rights and obligations under the Loan Documents with respect to the Loans and the LC
Outstandings and, in the case of a partial assignment, is in a minimum principal amount of $5,000,000 (unless
otherwise agreed by Agent in its sole discretion) and integral multiples of $1,000,000 in excess of that amount;
(ii) except in the case of an assignment in whole of a Lender's rights and obligations under the Loan Documents
or an assignment by one original signatory to this Agreement to another such signatory, immediately after giving
effect to any assignment, the aggregate amount of the Commitments retained by the transferor Lender shall in no
event be less than $5,000,000 (unless otherwise agreed by Agent in its sole discretion); (iii) the parties to
each such assignment shall execute and deliver to Agent, for its acceptance and recording, an Assignment and
Acceptance; and (iv) so long as no Event of Default exists, Borrowers shall have consented to the assignment in
writing prior to such assignment (which consent shall not be unreasonably withheld or delayed). Nothing
contained herein shall limit in any way the right of a Lender to assign all or any portion of the Obligations
owing to it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to
Regulation A of the Board of Governors and any Operating Circular issued by such Federal Reserve Bank, provided
that any payment by Borrowers to the assigning Lender in respect of such assigned Obligations in accordance with
the terms of this Agreement shall satisfy Borrowers' obligations hereunder in respect of such assigned
Obligations to the extent of such payment, and no such assignment shall release the assigning Lender from its
obligations hereunder.
13.3.2. Effect; Effective Date. Upon (i) delivery to Agent of a notice of assignment substantially in the form
attached as Exhibit H hereto, together with any consents required by Section 13.3.1, and (ii) payment of a $5,000
fee to the Agent for processing any assignment to an Eligible Assignee that is not an Affiliate of the transferor
Lender, such assignment shall become effective on the effective date specified in such notice of assignment. On
and after the effective date of such assignment, such Eligible Assignee shall for all purposes be a Lender party
to the Agreement and any other Loan Document executed by the Lenders and shall have all the rights and
obligations of the Lender under the Loan Documents to the same extent as if it were an original party thereto,
and no further consent or action by Borrowers, Lenders or Agent shall be required to release the transferor
Lender with respect to the Commitment (or portion thereof) of such Lender and Obligations assigned to such
Eligible Assignee. Upon the consummation of any assignment to an Eligible Assignee pursuant to this
Section 13.3, the transferor Lender, Agent and Borrowers shall make appropriate arrangements so that replacement
Notes are issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to
such Eligible Assignee, in each case in principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment. If the transferor Lender shall have assigned all of its interests, rights and
obligations under this Agreement pursuant to Section 13.3.1 hereof, such transferor Lender shall no longer have
any obligation to indemnify Agent with respect to any transactions, events or occurrences that transpire after
the effective date of such assignment, and each Eligible Assignee to which such transferor shall make an
assignment shall be responsible to Agent to indemnify Agent in accordance with this Agreement with respect to
transactions, events and occurrences transpiring on and after the effective date of such assignment to it.
13.3.3. Dissemination of Information. Each Borrower authorizes each Lender and Agent to disclose to any
Participant, any Eligible Assignee or any other Person acquiring an interest in the Loan Documents by operation
of law (each a "Transferee"), and any prospective Transferee, any and all information in Agent's or such Lender's
possession concerning each Borrower, the Subsidiaries of each Borrower or the Collateral, subject to appropriate
confidentiality undertakings on the part of such Transferee.
13.4. Tax Treatment. If any interest in any Loan Document is transferred to any Transferee that is organized
under the laws of any jurisdiction other than the United States or any State thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of
Section 4.10 hereof.
Section 14. MISCELLANEOUS
14.1. Power of Attorney. Each Borrower hereby irrevocably designates, makes, constitutes and appoints Agent
(and all Persons designated by Agent) as such Borrower's true and lawful attorney (and agent-in-fact) and Agent,
or Agent's designee, may, without notice to such Borrower and in either such Borrower's or Agent's name, but at
the cost and expense of Borrowers:
14.1.1. At such time or times as Agent or said designee, in its sole discretion, may determine, endorse such
Borrower's name on any Payment Item or proceeds of the Collateral which come into the possession of Agent or
under Agent's control.
14.1.2. At any time that an Event of Default exists: (i) demand payment of the Accounts from the Account
Debtors, enforce payment of the Accounts by legal proceedings or otherwise, and generally exercise all of such
Borrower's rights and remedies with respect to the collection of the Accounts; (ii) settle, adjust, compromise,
discharge or release any of the Accounts or other Collateral or any legal proceedings brought to collect any of
the Accounts or other Collateral; (iii) sell or assign any of the Accounts and other Collateral upon such terms,
for such amounts and at such time or times as Agent deems advisable; (iv) take control, in any manner, of any
item of payment or proceeds relating to any Collateral; (v) prepare, file and sign such Borrower's name to a
proof of claim in bankruptcy or similar document against any Account Debtor or to any notice of Lien, assignment
or satisfaction of Lien or similar document in connection with any of the Collateral; (vi) receive, open and
dispose of all mail addressed to such Borrower and to notify postal authorities to change the address for
delivery thereof to such address as Agent may designate; (vii) endorse the name of such Borrower upon any of the
items of payment or proceeds relating to any Collateral and deposit the same to the account of Agent on account
of the Obligations; (viii) endorse the name of such Borrower upon any chattel paper, document, instrument,
invoice, freight xxxx, xxxx of lading or similar document or agreement relating to any Accounts or Inventory of
any Obligor and any other Collateral; (ix) use such Borrower's stationery and sign the name of such Borrower to
verifications of the Accounts and notices thereof to Account Debtors; (x) use the information recorded on or
contained in any data processing equipment and computer hardware and software relating to the Accounts,
Inventory, Equipment or any other Collateral; (xi) make and adjust claims under policies of insurance; (xii) sign
the name of such Borrower on any proof of claim in bankruptcy against Account Debtors and on notices of Liens,
claims of mechanic's Liens or assignments or releases of mechanic's Liens securing any Accounts; (xiii) take all
action as may be necessary to obtain the payment of any letter of credit or banker's acceptance of which such
Borrower is a beneficiary; and (xiv) do all other acts and things necessary, in Agent's determination, to fulfill
such Borrower's obligations under this Agreement.
14.2. General Indemnity. Each Borrower hereby agrees to indemnify and defend the Indemnitees against and to
hold the Indemnitees harmless from any Indemnified Claim that may be instituted or asserted against or incurred
by any of the Indemnitees and that either (i) arises out of or relates to this Agreement or any of the other Loan
Documents (including any transactions entered into pursuant to any of the Loan Documents, Agent's Lien upon the
Collateral, or the performance by Agent or Lenders of their duties or the exercise of any of their rights or
remedies under this Agreement or any of the other Loan Documents) or (ii) results from Borrowers' failure to
observe, perform or discharge any of Borrowers' covenants or duties hereunder. Without limiting the generality
of the foregoing, this indemnity shall extend to any Indemnified Claims instituted or asserted against or
incurred by any of the Indemnitees by any Person under any Environmental Laws or similar laws by reason of any
Borrower's or any other Person's failure to comply with laws applicable to solid or hazardous waste materials or
other toxic substances. Additionally, if any Taxes (excluding Taxes imposed upon or measured solely by the net
income of Agent and Lenders, but including any intangibles tax, stamp tax, recording tax or franchise tax) shall
be payable by Agent or any Obligor on account of the execution or delivery of this Agreement, or the execution,
delivery, issuance or recording of any of the other Loan Documents, or the creation or repayment of any of
the Obligations hereunder, by reason of any Applicable Law now or hereafter in effect, Borrowers will pay (or will
promptly reimburse Agent and Lenders for the payment of) all such Taxes, including any interest and penalties
thereon, and will indemnify and hold Indemnitees harmless from and against all liability in connection
therewith. The foregoing indemnities shall not apply to Indemnified Claims incurred by any of the Indemnitees as
a direct and proximate result of their own gross negligence or willful misconduct or that arise out of any
disputes arising solely out of the relationship between Agent and any Lender.
14.3. Survival of All Indemnities. Notwithstanding anything to the contrary in this Agreement or any of the
other Loan Documents, the obligation of each Borrower and each Lender with respect to each indemnity given by it
in this Agreement, whether given by any or all Borrowers to Agent Indemnitees, Lender Indemnitees or Fleet
Indemnitees or by any Lender to any Agent Indemnitees or Fleet Indemnitees, shall survive the payment in full of
the Obligations and the termination of any of the Commitments.
14.4. Modification of Agreement. This Agreement may not be modified, altered or amended, except by an
agreement in writing signed by Borrowers and Agent and Lenders (or, where otherwise expressly allowed by
Section 12 hereof, the Required Lenders in lieu of Agent and Lenders); provided, however, that no consent, written
or otherwise, of Borrowers shall be necessary or required in connection with any amendment of any of the
provisions of Sections 1.3.2, 3.1.3, 4.6, or 12 (other than Section 12.17), or any other provision of this
Agreement that affects only the rights, duties and responsibilities of Lenders and Agent as among themselves so
long as no such amendment imposes any additional obligations on Borrowers.
14.5. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by
or invalid under Applicable Law, such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
14.6. Cumulative Effect; Conflict of Terms. The provisions of the Other Agreements and the Security Documents
are hereby made cumulative with the provisions of this Agreement. Without limiting the generality of the
foregoing, the parties acknowledge that this Agreement and the other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters and that such limitations, tests and
measures are cumulative and each must be performed, except as may be expressly stated to the contrary in this
Agreement. Except as otherwise provided in any of the other Loan Documents by specific reference to the
applicable provision of this Agreement, if any provision contained in this Agreement is in direct conflict with,
or inconsistent with, any provision in any of the other Loan Documents, the provision contained in this Agreement
shall govern and control.
14.7. Execution in Counterparts. This Agreement and any amendments hereto may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one
and the same instrument.
14.8. Consent. Whenever Agent's, Lenders' or Required Lenders' consent is required to be obtained under this
Agreement or any of the other Loan Documents as a condition to any action, inaction, condition or event, Agent
and each Lender shall be authorized to give or withhold its consent in its sole and absolute discretion and to
condition its consent upon the giving of additional collateral security for the Obligations, the payment of money
or any other matter.
14.9. Notices. All notices, requests and demands to or upon a party hereto shall be in writing and shall be
sent by certified or registered mail, return receipt requested, personal delivery against receipt or by
telecopier or other facsimile transmission and shall be deemed to have been validly served, given or delivered
when delivered against receipt or, in the case of facsimile transmission, when received (if on a Business Day
and, if not received on a Business Day, then on the next Business Day after receipt) at the office where the
noticed party's telecopier is located, in each case addressed to the noticed party at the address shown for
such party on the signature page hereof or, in the case of a Person who becomes a Lender after the date hereof, at
the address shown on the Assignment and Acceptance by which such Person became a Lender. Notwithstanding the
foregoing, no notice to or upon Agent pursuant to Sections 1.3, 2.1.2, 3.1 or 5.2.2 shall be effective until
after actually received by the individual to whose attention at Agent such notice is required to be sent. Any
written notice, request or demand that is not sent in conformity with the provisions hereof shall nevertheless be
effective on the date that such notice, request or demand is actually received by the individual to whose
attention at the noticed party such notice, request or demand is required to be sent.
14.10. Performance of Borrowers' Obligations. If any Borrower shall fail to discharge any covenant, duty or
obligation hereunder or under any of the other Loan Documents, Agent may, in its sole discretion at any time or
from time to time, for such Borrower's account and at Borrowers' expense, pay any amount or do any act required
of Borrowers hereunder or under any of the other Loan Documents or otherwise lawfully requested by Agent to
(i) enforce any of the Loan Documents or collect any of the Obligations, (ii) preserve, protect, insure or
maintain or realize upon any of the Collateral, or (iii) preserve, defend, protect or maintain the validity or
priority of Agent's Liens in any of the Collateral, including the payment of any judgment against any Borrower,
any insurance premium, any warehouse charge, any finishing or processing charge, any landlord claim, any other
Lien upon or with respect to any of the Collateral (whether or not a Permitted Lien). All payments that Agent
may make under this Section and all out-of-pocket costs and expenses (including Extraordinary Expenses) that
Agent pays or incurs in connection with any action taken by it hereunder shall be reimbursed to Agent by
Borrowers on demand with interest from the date such payment is made or such costs or expenses are incurred to
the date of payment thereof at the Default Rate applicable for Revolver Loans that are Base Rate Loans.
Any payment made or other action taken by Agent under this Section shall be without prejudice to any right to
assert, and without waiver of, an Event of Default hereunder and to without prejudice to Agent's right proceed
thereafter as provided herein or in any of the other Loan Documents.
14.11. Credit Inquiries. Each Borrower hereby authorizes and permits Agent and Lenders (but Agent and Lenders
shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning such
Borrower or any of its Subsidiaries.
14.12. Time of Essence. Time is of the essence of this Agreement, the Other Agreements and the Security
Documents.
14.13. Indulgences Not Waivers. Agent's or any Lender's failure at any time or times hereafter, to require
strict performance by Borrowers of any provision of this Agreement shall not waive, affect or diminish any right
of Agent or any Lender thereafter to demand strict compliance and performance therewith.
14.14. Entire Agreement; Appendix A, Exhibits and Schedules. This Agreement and the other Loan Documents,
together with all other instruments, agreements and certificates executed by the parties in connection therewith
or with reference thereto, embody the entire understanding and agreement between the parties hereto and thereto
with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and
inducements, whether express or implied, oral or written. Appendix A, each of the Exhibits and each of the
Schedules attached hereto are incorporated into this Agreement and by this reference made a part hereof.
14.15. Interpretation. No provision of this Agreement or any of the other Loan Documents shall be construed
against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having, or being deemed to have, structured, drafted or dictated such provision.
14.16. Obligations of Lenders Several. The obligations of each Lender hereunder are several, and no Lender
shall be responsible for the obligations or Commitment of any other Lender. Nothing contained in this Agreement
and no action taken by Lenders pursuant hereto shall be deemed to constitute the Lenders to be a partnership,
association, joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall be entitled, to the extent not otherwise
restricted hereunder, to protect and enforce its rights arising out of this Agreement and any of the other Loan
Documents and it shall not be necessary for Agent or any other Lender to be joined as an additional party in any
proceeding for such purpose.
14.17. Advertising and Publicity. With the prior consent of Borrowers (which shall not be unreasonably
withheld or delayed), Agent, on behalf of Lenders, may issue and disseminate to the public (by advertisement or
otherwise) information describing the credit accommodations made available by Lenders pursuant to this Agreement,
including the name and address of each Borrower, the amount and security for the credit accommodations and the
general nature of each Borrower's business, provided that detail regarding terms (such as interest rate) may be
provided only to industry publications, such as the "LPC Gold Sheets."
14.18. Confidentiality. Agent and Lenders each agrees to exercise reasonable efforts (and, in any event, with
at least the same degree of care as it ordinarily exercises with respect to confidential information of its other
customers) to keep any confidential information that is delivered or made available by Borrowers to it and that
is marked confidential, including information made available to Agent or any Lender in connection with a visit or
investigation by any Person contemplated in Section 9.1.1 hereof, confidential from any Person other than their
respective Affiliates and individuals employed or retained by Agent or such Lender who are or are expected to
become engaged in evaluating, approving, structuring, administering or otherwise giving professional advice with
respect to any of the Loans or Collateral, including any of their respective legal counsel, auditors or other
professional advisors provided, however, that nothing herein shall prevent Agent or any Lender from disclosing
such confidential information (i) to any party to this Agreement from time to time or any Participant,
(ii) pursuant the order of any court or administrative agency, (iii) upon the request or demand of any regulatory
agency or authority having jurisdiction over Agent or such Lender, (iv) which has been publicly disclosed other
than by an act or omission of Agent or any Lender except as permitted herein or which becomes available to Agent
or any Lender on a nonconfidential basis from a source other than Obligors, (v) to the extent reasonably required
in connection with any litigation (with respect to any of the Loan Documents or any of the transactions
contemplated thereby) to which Agent, any Lender or their respective Affiliates may be a party, (vi) to the
extent reasonably required in connection with the exercise of any remedies hereunder, (vii) to any Agent
Professionals or any Lender's legal counsel or auditors, (viii) to any actual or proposed Participant, Assignee,
counterparty or advisors to any swap or derivative transactions relating to Obligors and the Obligations, or any
other Transferee of all or part of a Lender's rights hereunder so long as such Person has agreed in writing to be
bound by the provisions of this Section, (viii) to the National Association of Insurance Commissioners or any
similar organization or to any nationally recognized rating agency that requires access to information about a
Lender's portfolio in connection with ratings issued with respect to such Lender, (ix) to the extent reasonably
required by Applicable Law (including the Xxxxxxxx-Xxxxx Act) or (x) with the consent of Borrowers.
Notwithstanding anything herein to the contrary contained above, the information subject to this Section 14.18
shall not include, and Agent and each Lender may disclose, without limitation of any kind, any information with
respect to the "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation
Section 1.6011-4) of the transactions contemplated hereby and all materials of any kind (including opinions or
other tax analyses) that are provided to Agent or such Lender relating to such tax treatment and tax structure;
provided that with respect to any document or similar item that in either case contains information concerning
the tax treatment or tax structure of the transactions as well as other information, this sentence shall only
apply to such portions of the document or similar item that relate to the tax treatment or tax structure of the
Loans, Letters of Credit and transactions contemplated hereby.
14.19. Senior Debt. Borrowers acknowledge and agree and confirm to Agent and Lenders that this Agreement
constitutes the "Senior Credit Facility" and the Obligations constitute "Senior Debt", each as defined in the
Senior Subordinated Indenture.
14.20. Governing Law; Consent to Forum. This Agreement has been negotiated, executed and delivered at and shall
be deemed to have been made in Atlanta, Georgia. This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia; provided, however, that, if any of the Collateral shall be located in any
jurisdiction other than Georgia, the laws of such jurisdiction shall govern the method, manner and procedure for
foreclosure of Agent's Lien upon such Collateral and the enforcement of Agent's other remedies in respect of such
Collateral to the extent that the laws of such jurisdiction are different from or inconsistent with the laws of
the State of Georgia. As part of the consideration for new value received, and regardless of any present or
future domicile or principal place of business of any Borrower, any Lender or Agent, each Borrower hereby
consents and agrees that the Superior Court of Xxxx County, Georgia, or, at Agent's option, the United States
District Court for the Northern District of Georgia, Atlanta Division, shall have jurisdiction to hear and
determine any claims or disputes among any or all Borrowers, Agent and Lenders pertaining to this Agreement or to
any matter arising out of or related to this Agreement. Each Borrower expressly submits and consents in advance
to such jurisdiction in any action or suit commenced in any such Court, and each Borrower hereby waives any
objection that such Borrower may have based upon lack of personal jurisdiction, improper venue or forum non
conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such
Court. Each Borrower hereby waives personal service of the summons, complaint and other process issued in any
such action or suit and agrees that service of such summons, complaint and other process may be made by certified
mail addressed to such Borrower at the address set forth in this Agreement and that service so made shall be
deemed completed upon the earlier of such Borrower's actual receipt thereof or 3 days after deposit in the U.S.
mails, proper postage prepaid. Nothing in this Agreement shall be deemed or operate to affect the right of Agent
to serve legal process in any other manner permitted by law, or to preclude the enforcement by Agent of
any judgment or order obtained in such forum or the taking of any action under this Agreement to enforce same in
any other appropriate forum or jurisdiction.
14.21. Waivers by Borrowers. To the fullest extent permitted by Applicable Law, each Borrower waives (i) the
right to trial by jury (which Agent and each Lender hereby also waives) in any action, suit, proceeding or
counterclaim of any kind arising out of or related to any of the Loan Documents, the Obligations or the
Collateral; (ii) presentment, demand and protest and notice of presentment, protest, default, non payment,
maturity, release, compromise, settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties at any time held by Agent on which such
Borrower may in any way be liable and hereby ratifies and confirms whatever Agent may do in this regard;
(iii) notice prior to taking possession or control of the Collateral or any bond or security which might be
required by any court prior to allowing Agent to exercise any of Agent's remedies; (iv) the benefit of all
valuation, appraisement and exemption laws; (v) any claim against Agent or any Lender, on any theory of
liability, for special, indirect, consequential, or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, any of the Loan Documents, any transaction thereunder or
the use of the proceeds of any Loans; and (vi) notice of acceptance hereof. Each Borrower acknowledges that the
foregoing waivers are a material inducement to Agent's and Lender's entering into this Agreement and that Agent
and Lenders are relying upon the foregoing waivers in its future dealings with Borrowers. Each Borrower warrants
and represents that it has reviewed the foregoing waivers with its legal counsel and has knowingly and
voluntarily waived its jury trial rights following consultation with legal counsel. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the Court.
14.22. Texas Finance Code. Borrowers, Agent and Lenders hereby agree that the provisions of Chapter 346 of the
Texas Finance Code, as amended (regulating certain revolving credit and revolving tri-party accounts) shall not
apply to the Loan Documents.
14.23. Waiver of DTPA. Each Borrower waives all provisions of the Texas Deceptive Trade Practices-Consumer
Protection Act, Texas Business and Commerce Xxxxxx.xx. 17.41, et seq. ("DTPA") other than ss. 17.555 (pertaining to
contribution and indemnity) of the DPTA, and warrants and represents that it (i) has assets having a value of
$5,000,000 or more, (ii) has knowledge and experience in financial and business matters that enable it to
evaluate the merits and risks of the transactions contemplated by this Agreement and the other Loan Documents,
(iii) is not in a significantly disparate bargaining position relative to Agent and Lenders and (iv) has been
represented by legal counsel in connection with the transactions contemplated by this Agreement and the other
Loan Documents.
14.24. Amendment and Restatement. This Agreement amends and restates the Original Loan Agreement, and is not
intended to be or operate as a novation or an accord and satisfaction of the Original Loan Agreement or the
Obligations evidenced or secured thereby or provided for thereunder.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, this Agreement has been duly executed in Atlanta, Georgia, on the day and year
specified at the beginning of this Agreement.
BORROWERS:
ATTEST: TROPICAL SPORTSWEAR INT'L CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
ATTEST: TROPICAL SPORTSWEAR COMPANY, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
ATTEST: SAVANE INTERNATIONAL CORP.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
[Signatures continued on following page]
ATTEST: APPAREL NETWORK
CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
ATTEST: TSI BRANDS, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Vice President
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
ATTEST: TSIL, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Vice President
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
[Signatures continued on following page]
ATTEST: DUCK HEAD APPAREL
COMPANY, LLC
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive VicePresident
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
ATTEST: DELTA MERCHANDISING, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
Address:
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
Telecopier No.: (000) 000-0000
LENDERS:
FLEET CAPITAL CORPORATION
Revolver Commitment: $47,000,000 By: /s/ Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
Address and LIBOR Lending Office:
Suite, 800, 000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Office Head
Telecopier No.: (000) 000-0000
[Signatures continued on following page]
WACHOVIA BANK, NATIONAL ASSOCIATION
Revolver Commitment: $29,000,000 By: Xxxx Xxxxxxx
Title: Director
Address and LIBOR Lending Office:
Attention: ______________________
Telecopier No.: (___) _____________
BANK OF AMERICA, N.A.
Revolver Commitment: $19,000,000 By: Xxxx X. Xxxxxxxx
Title: Vice President
Address and LIBOR Lending Office:
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Loan Administration
Telecopier No.: (000) 000-0000
AGENT:
FLEET CAPITAL CORPORATION,
as Agent
By: /s/ Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
Address and LIBOR Lending Office:
Xxxxx 000, 000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Office Head
Telecopier No.: (000) 000-0000
APPENDIX A
GENERAL DEFINITIONS
When used in the Amended and Restated Loan and Security Agreement dated June 6, 2003 (as at any time
amended, the "Agreement"), by and among TROPICAL SPORTSWEAR INT'L CORPORATION, a Florida corporation
("Tropical"), TROPICAL SPORTSWEAR COMPANY, INC., a Delaware corporation ("TSCI"), SAVANE INTERNATIONAL CORP., a
Texas corporation ("Savane"), APPAREL NETWORK CORPORATION, a Florida corporation ("Apparel"), TSI BRANDS, INC., a
Delaware corporation ("TSI"), TSIL, INC., a Delaware corporation ("TSIL"), DUCK HEAD APPAREL COMPANY, LLC, a
Georgia limited liability company ("Duck Head"), and DELTA MERCHANDISING, INC., a South Carolina corporation
("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL, Duck Head and Delta collectively referred to hereinafter as
"Borrowers" and individually as a "Borrower"), each financial institution listed on the signature pages attached
thereto and its successors and assigns which become "Lenders" as provided therein (such financial institutions
and their respective successors and assigns referred to collectively herein as "Lenders" and individually as a
"Lender"), and FLEET CAPITAL CORPORATION ("Agent"), in its capacity as collateral and administrative agent for
itself and the Lenders, the following terms shall have the following meanings (terms defined in the singular to
have the same meaning when used in the plural and vice versa):
Account - shall have the meaning ascribed to "account" in the UCC and shall include any and all
rights of a Borrower to payment for goods sold or leased or for services rendered that are not evidenced
by an Instrument or Chattel Paper, whether or not they have been earned by performance.
Account Debtor - a Person who is or becomes obligated under or on account of an Account.
Accounts Collateral - all Accounts of a Borrower and all right, title and interest of such
Borrower in or to any returned Goods the sale or other disposition of which gave rise to an Account,
together with all rights, titles, securities and guarantees with respect to any Account, including any
rights to stoppage in transit, replevin, reclamation and resales, and all related security or Liens,
whether voluntary or involuntary, in each case whether now existing or owned or hereafter created,
arising or acquired.
Accounts Formula Amount - on any date of determination thereof, an amount equal to the lesser
of (i) the Revolver Commitments on such date or (ii) 85% or such lesser percentage as Agent may in its
sole credit judgment determine from time to time of the net amount of Eligible Accounts on such date.
As used herein, the phrase "net amount of Eligible Accounts" shall mean the face amount of such Accounts
on any date less any and all returns, rebates, discounts (which may, at Lender's option, be calculated
on shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) at any time
issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with, or any
interest accrued on the amount of, such Accounts at such date.
Adjusted LIBOR Rate - with respect to each Interest Period for a LIBOR Loan, an interest rate
per annum (rounded upwards, to the next 1/16th of 1%) equal to the quotient of (a) the LIBOR Rate in
effect for such Interest Period divided by (b) a percentage (expressed as a decimal) equal to 100% minus
Statutory Reserves.
Affiliate - a Person (other than a Subsidiary): (i) which directly or indirectly through one
or more intermediaries controls, or is controlled by, or is under common control with, another Person;
(ii) which beneficially owns or holds 10% or more of any class of the Equity Interests of a Person; or
(iii) 10% or more of the Equity Interests with power to vote of which is beneficially owned or held by
another Person or a Subsidiary of another Person. For purposes hereof, "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 any Equity Interest, by contract or otherwise.
Agent Indemnitees - Agent in its capacity as collateral and administrative agent for
the Lenders under the Loan Documents and all of Agent's present and future officers, directors, agents
and attorneys.
Agent Professionals - attorneys, accountants, appraisers, business valuation experts,
environmental engineers or consultants, turnaround consultants and other professionals or experts
retained by Agent.
Agreement - the Amended and Restated Loan and Security Agreement referred to in the first
sentence of this Appendix A, all Exhibits and Schedules thereto and this Appendix A.
Applicable Law - all laws, rules and regulations applicable to the Person, conduct,
transaction, covenant, Loan Document or Material Contract in question, including all applicable common
law and equitable principles; all provisions of all applicable state, federal and foreign constitutions,
statutes, rules, regulations and orders of Governmental Authorities; and all orders, judgments and
decrees of all courts and arbitrators.
Applicable Margin - a percentage equal to 0.75% with respect to Revolver Loans that are Base
Rate Loans, 2.25% with respect to Revolver Loans that are LIBOR Loans; provided, that, commencing July
1, 2003, the Applicable Margin shall be increased or (if no Default or Event of Default exists)
decreased, based upon Average Availability for the immediately preceding Fiscal Quarter of Borrowers, as
follows:
------------------------------------------ ----------------------------------------
Average Availability for the immediately Revolver Loans
preceding Fiscal Quarter Outstanding as:
------------------------------------------ ----------------------------------------
------------------------------------------ --------------------- ------------------
Base Rate Loan LIBOR Loan
------------------------------------------ --------------------- ------------------
------------------------------------------ --------------------- ------------------
Greater than $30,000,000 0.75% 2.25%
------------------------------------------ --------------------- ------------------
------------------------------------------ --------------------- ------------------
Equal to or less than $30,000,000, but 1.00% 2.50%
greater than or equal to $20,000,000
------------------------------------------ --------------------- ------------------
------------------------------------------ --------------------- ------------------
Less than $20,000,000 1.25% 2.75%
------------------------------------------ --------------------- ------------------
The Applicable Margin shall be subject to reduction or increase, as applicable and as set forth in the
table above, on a quarterly basis according to Average Availability for the immediately preceding Fiscal
Quarter of Borrowers, on the first day of the second month immediately following the end of such Fiscal
Quarter. For purposes of this definition, Average Availability shall be determined by Agent based on
the most recent Compliance Certificate delivered by Borrower to Agent pursuant to Section 7.5 of the
Agreement and Agent's books and records, and such determination by Agent, in the absence of any manifest
error, shall be conclusive.
Assignment and Acceptance - an assignment and acceptance entered into by a Lender and an
Eligible Assignee and accepted by Agent, in the form of Exhibit G.
Availability - on any date, the amount that Borrowers are entitled to borrow as Revolver Loans
on such date, such amount being the difference derived when the sum of the principal amount of Revolver
Loans then outstanding (including any amounts that Agent or Lenders may have paid for the account of
Borrowers pursuant to any of the Loan Documents and that have not been reimbursed by Borrowers and any
outstanding Settlement Loans) is subtracted from the Borrowing Base on such date. If the amount
outstanding is equal to or greater than the Borrowing Base, Availability is zero.
Availability Reserve - on any date of determination thereof, an amount equal to the sum of
the following (without duplication): (i) the Inventory Reserve; (ii) all amounts of past due rent, fees
or other charges owing at such time by any Obligor to any landlord of any premises where any of the
Collateral is located or to any processor, repairman, mechanic or other Person who is in possession of
any Collateral or has asserted any Lien or claim thereto; (iii) any amounts which any Obligor is
obligated to pay pursuant to the provisions of any of the Loan Documents that Agent or any Lender elects
to pay for the account of such Obligor in accordance with authority contained in any of the Loan
Documents; (iv) the LC Reserve; (v) any amount received by Agent from the Business Interruption
Insurance Assignment and applied to the Revolver Loans; (vi) the aggregate amount of reserves
established by Agent in its reasonable discretion in respect of ACH (automated clearinghouse) transfers
or obligations of Borrowers; (vii) the Dilution Reserve; (ix) the Hedging Agreement Reserve; and (x)
such additional reserves, in such amounts and with respect to such matters, as Agent in its reasonable
credit judgment may elect to impose from time to time.
Average Availability - for any period, an amount equal to the sum of the actual amount of
Availability on each day during such period, as determined by Agent, divided by the number of days in
such period.
Average Revolver Loan Balance - for any period, the amount obtained by adding the aggregate of
the unpaid balance of Revolver Loans and LC Outstandings at the end of each day for the period in
question and by dividing such sum by the number of days in such period.
Bank - Fleet National Bank.
Bank of America - Bank of America, N.A., a national banking association.
Bank of America Loan Documents - collectively, the Bank of America Mortgage, any loan
agreements, notes, documents, agreements or other instruments executed in connection therewith.
Bank of America Mortgage - the Real Estate Mortgage, between Tropical and, pursuant to which
Tropical has conveyed to Bank of America a Lien upon certain real Property and the improvements thereon
owned by Tropical and located at 0000 Xxxx Xxxxxx Xxxxxx and 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx,
Xxxxxxxxxxxx Xxxxxx, Xxxxxxx.
Bankruptcy Code - title 11 of the United States Code.
Base Rate - the rate of interest announced or quoted by Bank from time to time as its prime
rate. The prime rate announced by Bank is a reference rate and does not necessarily represent the lowest
or best rate charged by Bank. Bank may make loans or other extensions of credit at, above or below its
announced prime rate. If the prime rate is discontinued by Bank as a standard, a comparable reference
rate designated by Bank as a substitute therefor shall be the Base Rate.
Base Rate Loan - a Loan, or portion thereof, during any period in which it bears interest at a
rate based upon the Base Rate.
Board of Governors - the Board of Governors of the Federal Reserve System.
Borrowing - a borrowing consisting of Loans of one Type made on the same day by Lenders (or by
Fleet in the case of a Borrowing funded by Settlement Loans) or a conversion of a Loan or Loans of one
Type from Lenders on the same day.
Borrowing Base - on any date of determination thereof, an amount equal to the lesser of:
(a) the aggregate amount of the Revolver Commitments on such date minus the LC Outstandings on such date,
or (b) an amount equal to (i) the sum of the Accounts Formula Amount plus the Inventory Formula Amount
on such date minus (ii) the Availability Reserve on such date.
Borrowing Base Certificate - a certificate, in the form requested by Agent, by which Borrowers
shall certify to Agent and Lenders, with such frequency as Agent may request, the amount of
the Borrowing Base as of the date of the certificate (which date shall be not more than one Business Days
earlier than the date of submission of such certificate to Agent) and the calculation of such amount.
Business Day - any day excluding Saturday, Sunday and any other day that is a legal holiday
under the laws of the State of Georgia or is a day on which banking institutions located in such state
are closed; provided, however, that when used with reference to a LIBOR Loan (including the making,
continuing, prepaying or repaying of any LIBOR Loan), the term "Business Day" shall also exclude any day
on which banks are not open for dealings in Dollar deposits on the London interbank market.
Business Interruption Insurance Assignment - the Collateral Assignment of Business Interruption
Insurance executed by Borrowers on June 10, 1998, in favor of Agent as security for the payment of the
Obligations.
Capital Expenditures - expenditures made or liabilities incurred for the acquisition of any
fixed assets or improvements, replacements, substitutions or additions thereto which have a useful life
of more than one year, including the total principal portion of Capitalized Lease Obligations.
Capitalized Lease Obligation - any Debt represented by obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with GAAP.
Cash Collateral - cash or Cash Equivalents, and any interest earned thereon, that is deposited
with Agent in accordance with the Agreement for the Pro Rata benefit of Lenders as security for the
Obligations.
Cash Collateral Account - a demand deposit, money market or other account established by Agent
at such financial institution as Agent may select in its discretion, which account shall be in Agent's
name and subject to Agent's Liens for the Pro Rata benefit of Lenders.
Cash Equivalents - (i) marketable direct obligations issued or unconditionally guaranteed by
the United States government and backed by the full faith and credit of the United States government
having maturities of not more than 12 months from the date of acquisition; (ii) domestic certificates of
deposit and time deposits having maturities of not more than 12 months from the date of acquisition,
bankers' acceptances having maturities of not more than 12 months from the date of acquisition and
overnight bank deposits, in each case issued by any commercial bank organized under the laws of the
United States, any state thereof or the District of Columbia, which at the time of acquisition are rated
A-1 (or better) by S&P or P-1 (or better) by Xxxxx'x, and (unless issued by a Lender) not subject to
offset rights in favor of such bank arising from any banking relationship with such bank;
(iii) repurchase obligations with a term of not more than 30 days for underlying securities of the types
described in clauses (i) and (ii) entered into with any financial institution meeting the qualifications
specified in clause (ii) above; and (iv) commercial paper having at the time of investment therein or a
contractual commitment to invest therein a rating of A-1 (or better) by S&P or P-1 (or better) by
Xxxxx'x, and having a maturity within 9 months after the date of acquisition thereof.
Cash Management Agreements - any agreement entered into from time to time between any Borrower
or any of its Subsidiaries, on the one hand, and Bank or any of its Affiliates or any other banking or
financial institution, on the other, in connection with cash management services for operating,
collections, payroll and trust accounts of such Borrower or its Subsidiaries provided by such banking or
financial institution, including automatic clearinghouse services, controlled disbursement services,
electronic funds transfer services, information reporting services, lockbox services, stop payment
services and wire transfer services.
CERCLA - the Comprehensive Environmental Response Compensation and Liability Act, 42 X.X.X.xx.
9601 et seq. and its implementing regulations.
Chattel Paper - shall have the meaning given to "chattel paper" in the UCC.
Closing Date - the date on which all of the conditions precedent in Section 10 of the Agreement
are satisfied
Collateral - all of the Property and interests in Property described in Section 6 of the
Agreement; all Property described in any of the Security Documents as security for the payment or
performance of any of the Obligations; and all other Property and interests in Property that now or
hereafter secure (or are intended to secure) the payment and performance of any of the Obligations.
Commitment - at any date for any Lender, the aggregate amount of such Lender's Revolver
Commitment, and "Commitments" means the aggregate amount of all Revolver Commitments.
Commitment Termination Date - the date that is the soonest to occur of (i) the last day of the
Term; (ii) the date on which either Borrowers or Agent terminates the Commitments pursuant to Section
5.2 of the Agreement; or (iii) the date on which the Commitments are automatically terminated pursuant
to Section 11.2 of the Agreement.
Compliance Certificate - a Compliance Certificate to be provided by Borrowers to Agent in
accordance with, and in the form annexed as Exhibit E to, the Agreement, and the supporting schedules to
be annexed thereto.
Consolidated - the consolidation in accordance with GAAP of the accounts or other items as to
which such term applies.
Consolidated EBITDA - for any fiscal period of Borrowers, Borrowers' (i) income (or loss)
before interest and taxes plus, (ii) to the extent deducted in determining such income (or loss),
depreciation, amortization and other similar non-cash charges and reserves other than non-cash charges
or credits resulting from changes in prepaid assets of accrued liabilities in the ordinary course of
business, minus (iii) to the extent recognized in determining such income (or loss), extraordinary gains
(or losses).
Consolidated Fixed Charge Coverage Ratio - with respect to any fiscal period, the ratio of (a)
Consolidated EBITDA minus Borrowers' Capital Expenditures minus income taxes for such period to (b) the
sum of all Consolidated Fixed Charges for such period.
Consolidated Fixed Charges - with respect to any fiscal period, the sum of Borrowers' (a)
interest expense plus (b) the aggregate of all actual principal payments of Debt for Money Borrowed,
plus (c) cash Distributions permitted by the Agreement whether declared or paid.
Consolidated Funded Debt/Consolidated EBITDA - for any date, the ratio of (i) Consolidated
Funded Debt outstanding on such date to (ii) Consolidated EBITDA.
Contingent Obligation - with respect to any Person, any obligation of such Person arising from
any guaranty, indemnity or other assurance of payment or performance of any Debt, lease, dividend or
other obligation ("primary obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including (i) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the Ordinary Course of Business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of a primary obligor, (ii) the obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties
to an agreement, (iii) any obligation of such Person, whether or not contingent, (A) to purchase any
such primary obligation or any Property constituting direct or indirect security therefor, (B) to
advance or supply funds (1) for the purchase or payment of any such primary obligations or (2) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (C) to purchase Property, Securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (D) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the term "Contingent
Obligation" shall not include any product warranties extended in the Ordinary Course of Business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less,
the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms
of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability with respect thereto (assuming such Person is required to perform
thereunder), as determined by such Person in good faith.
Controlled Disbursement Account - a demand deposit account at any time maintained by Borrowers
at Bank and to which proceeds of Loans may be wired from time to time.
Currency Contract - any forward contract, futures contract, foreign exchange contract, currency
swap agreement and other similar agreements and arrangements at any time entered into by a Borrower with
Bank that is designed to protect such Borrower against fluctuations in foreign exchange rates.
Current Assets - at any date, the amount at which all of the current assets of a Person would
be properly classified as current assets shown on a balance sheet at such date in accordance with GAAP
except that amounts due from Affiliates and investments in Affiliates shall be excluded therefrom.
CWA - the Clean Water Act (33 U.S.C.ss.ss.1251 et seq.).
Debt - as applied to a Person means, without duplication: (i) all items which in accordance
with GAAP would be included in determining total liabilities as shown on the liability side of a balance
sheet of such Person as of the date as of which Debt is to be determined, including Capitalized Lease
Obligations; (ii) all Contingent Obligations of such Person; (iii) all reimbursement obligations in
connection with letters of credit or letter of credit guaranties issued for the account of such Person;
and (iv) in the case of a Borrower (without duplication), the Obligations. The Debt of a Person shall
include any recourse Debt of any partnership or joint venture in which such Person is a general partner
or joint venturer.
Debt Subordination Agreement - the Debt Subordination Agreement dated June 10, 1998, among
TSCI, Tropical and Agent, pursuant to which TSCI has agreed to subordinate all indebtedness owing by
Tropical to TSCI to the prior payment in full of the Obligations.
Default - an event or condition the occurrence of which would, with the lapse of time or the
giving of notice, or both, become an Event of Default.
Default Rate - on any date, a rate per annum that is equal to (i) in the case of each Loan
outstanding on such date, 20% in excess of the rate otherwise applicable to such Loan on such date, and
(ii) in the case of any of the other Obligations outstanding on such date, 2% plus the highest
Applicable Margin for Base Rate Loans in effect on such date.
Deposit Account Assignment - the Collateral Assignment of Deposit Accounts executed by each
Borrower on June 10, 1998 in favor of Agent for itself and the Pro Rata benefit of Lenders, as security
for the Obligations.
Dilution - for the 12-month period preceding the date of determination, the average of the
percentage each month of gross Accounts offset by discounts, returned items, credits, rebates,
concessions, contractual adjustments and similar items.
Dilution Reserve - a reserve equal to the product of the Dilution Reserve Percentage multiplied
by the face value of all Accounts, not to exceed 5%.
Dilution Reserve Period - the period commencing on the Closing Date and ending on such date as
Borrowers provide Agent evidence satisfactory to Agent that Dilution is less than or equal to 7%.
Dilution Reserve Percentage - at any time, the percentage (or portion thereof) by which
Dilution exceeds 7% (which percentage is 5% as of the date hereof).
Deposit Accounts - all of a Person's demand, time, savings, passbook, money market or other
depository accounts, and all certificates of deposit, maintained by such Person with any bank, savings
and loan association, credit union or other depository institution.
Distribution - in respect of any entity, (i) any payment of any dividends or other
distributions on Equity Interests of the entity (except distributions in such Equity Interests) and
(ii) any purchase, redemption or other acquisition or retirement for value of any Equity Interests of the
entity or any Affiliate of the entity unless made contemporaneously from the net proceeds of the sale of
Equity Interests.
Document - shall have the meaning given to" document" in the UCC.
Dollar Equivalent - with respect to any monetary amount in any foreign currency at any date for
the determination thereof, the amount of Dollars obtained by converting such foreign currency into
Dollars at the spot rate for the purchase of Dollars with such foreign currency as quoted by Bank at
approximately 11:00 a.m. (Atlanta, Georgia time) on the date of determination thereof.
Dollars and the sign $ - lawful money of the United States of America.
Domestic Subsidiary - a Subsidiary of a Borrower (other than a Subsidiary that is a Borrower)
that is incorporated under the laws of a state of the United States or the District of Columbia.
Dominion Account - a special account of Agent established by Borrowers at a bank selected by
Borrowers, but acceptable to Agent and Lenders in their discretion, and over which Agent shall have sole
and exclusive access and control for withdrawal purposes.
Eligible Account - an Account which arises in the Ordinary Course of Business of a Borrower
from the sale of goods, is payable in Dollars, is subject to Agent's duly perfected Lien, and is deemed
by Agent, in its sole credit judgment, to be an Eligible Account. Without limiting the generality of
the foregoing, no Account shall be an Eligible Account if: (i) it arises out of a sale made by a
Borrower to a Subsidiary or an Affiliate of any Borrower or to a Person controlled by an Affiliate of
any Borrower; (ii) it is unpaid for more than 60 days after the original due date shown on the invoice;
(iii) it is due or unpaid more than 90 days after the original invoice date; (iv) 50% or more of
the Accounts from the Account Debtor are not deemed Eligible Accounts hereunder; (v) the total unpaid
Accounts of the Account Debtor exceed 20% (or 40% for Wal-Mart Stores, Inc. and its Affiliates) of the
aggregate amount of all Eligible Accounts or exceed a credit limit established by Agent for such Account
Debtor, in each case, to the extent of such excess; (vi) any covenant, representation or warranty
contained in the Agreement with respect to such Account has been breached; (vii) the Account Debtor is
also such Borrower's creditor or supplier, or the Account Debtor has disputed liability with respect to
such Account, or the Account Debtor has made any claim with respect to any other Account due from such
Account Debtor to such Borrower, or the Account otherwise is or may become subject to any right of
setoff, counterclaim, recoupment, reserve or chargeback, provided that, the Accounts of such Account
Debtor shall be ineligible only to the extent of such offset, counterclaim, disputed amount, reserve or
chargeback; (viii) an Insolvency Proceeding has been commenced by or against the Account Debtor or the
Account Debtor has failed, suspended business or ceased to be Solvent; (ix) it arises from a sale to an
Account Debtor with its principal office, assets or place of business outside the United States, unless
the sale is backed by an irrevocable letter of credit issued or confirmed by a bank acceptable to Agent
and that is in form and substance acceptable to Agent and payable in the full amount of the Account in
freely convertible Dollars at a place of payment within the United States and, if requested by Agent,
such letter of credit, or amounts payable thereunder, is assigned to Agent (with such assignment
acknowledged by the issuing or confirming bank); (x) it arises from a sale to the Account Debtor on a
xxxx-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment or any other repurchase or
return basis; (xi) the Account Debtor is the United States of America or any department, agency or
instrumentality thereof, unless the applicable Borrower is not prohibited from assigning the Account and
does assign its right to payment of such Account to Agent, in a manner satisfactory to Agent, so as to
comply with the Assignment of Claims Act of 1940 (31 U.S.C.ss.3727 and 41 U.S.C.ss.15), or is a state,
county or municipality, or a political subdivision or agency thereof and Applicable Law disallows or
restricts an assignment of Accounts on which it is the Account Debtor; (xii) the Account Debtor is
located in any state which imposes conditions on the right of a creditor to collect accounts receivable
unless the applicable Borrower has either qualified to transact business in such state as a foreign
entity or filed a Notice of Business Activities Report or other required report with the appropriate
officials in those states for the then current year; (xiii) the Account Debtor is located in a state in
which such Borrower is deemed to be doing business under the laws of such state and which denies
creditors access to its courts in the absence of qualification to transact business in such state or of
the filing of any reports with such state, unless such Borrower has qualified as a foreign entity
authorized to transact business in such state or has filed all required reports; (xiv) the Account is
subject to a Lien other than a Permitted Lien; (xv) the goods giving rise to such Account have not been
delivered to and accepted by the Account Debtor or the services giving rise to such Account have not
been performed by such Borrower and accepted by the Account Debtor or the Account otherwise does not
represent a final sale; (xvi) the Account is evidenced by Chattel Paper or an Instrument of any kind, or
has been reduced to judgment; (xvii) the Account represents a progress billing or a retainage;
(xviii) such Borrower has made any agreement with the Account Debtor for any deduction therefrom, except
for discounts or allowances which are made in the Ordinary Course of Business for prompt payment and
which discounts or allowances are reflected in the calculation of the face value of each invoice related
to such Account; (xix) such Borrower has made an agreement with the Account Debtor to extend the time of
payment thereof; (xx) the Account represents, in whole or in part, a billing for interest, fees or late
charges, provided that such Account shall be ineligible only to the extent of the amount of such
billing; (xxi) the Account Debtor has made a partial payment with respect to such Account; (xxii) it
arises from the sale of any Inventory that is not Eligible Inventory pursuant to clause (ii) of the
definition of "Eligible Inventory"; or (xxiii) it arises from a retail sale of Inventory to a Person who
is purchasing the same primarily for personal, family or household purposes.
Eligible Assignee - a Person that is a Lender or a U.S. based Affiliate of a Lender; a
commercial bank, finance company, insurance company or other financial institution, in each case that is
organized under the laws of the United States or any state, has total assets in excess of $5 billion,
extends credit of the type contemplated herein in the Ordinary Course of Business and whose becoming an
assignee would not constitute a prohibited transaction under Section 4975 of ERISA or any other
Applicable Law and is acceptable to Agent and, unless a Default or an Event of Default exists, Borrowers
(such approval by Borrowers, when required, not to be unreasonably withheld or delayed and to be deemed
given by Borrowers if no objection is received by the assigning Lender and Agent from Borrowers within 2
Business Days after notice of such proposed assignment has been provided by the assigning Lender as set
forth in Section 13.3 of the Agreement); and, at any time that an Event of Default exists, any other
Person acceptable to Agent in its sole discretion.
Eligible Inventory - Inventory which is owned by a Borrower (other than packaging materials,
samples, bags and supplies) and which Agent, in its sole credit judgment, deems to be Eligible
Inventory. Without limiting the generality of the foregoing, no Inventory shall be Eligible Inventory
unless: (i) it is raw materials or finished goods; (ii) it is owned by a Borrower and it is not held by
such Borrower on consignment from or subject to any guaranteed sale, sale-or-return, sale-on-approval or
repurchase agreement with any supplier; (iii) it is in good, new and saleable condition and is not
damaged or defective; (iv) it is not slow-moving, obsolete or unmerchantable and is not goods returned
to such Borrower by or repossessed from an Account Debtor; (v) it meets all standards imposed by
any Governmental Authority; (vi) it conforms in all respects to the warranties and representations set
forth in the Agreement and is fully insured in the manner required by the Agreement; (vii) it is at all
times subject to Agent's duly perfected, first priority security interest and no other Lien except a
Permitted Lien; (viii) it is in such Borrower's possession and control at a location in compliance with
the Agreement and is not in transit or outside the continental United States, and it is not consigned to
any Person; (ix) it is not the subject of a negotiable warehouse receipt or other negotiable Document,
unless it is Qualified In-Transit Inventory; (x) it has not been sold or leased and such Borrower has
not received any deposit or downpayment in respect thereof in anticipation of a sale; (xi) it is not
subject to any License Agreement or other agreement that limits, conditions or restricts such Borrower's
or Agent's right to sell or otherwise dispose of such Inventory unless the Licensor has entered into a
Licensor/Lender Agreement with Agent; (xii) it is not the subject of an Intellectual Property Claim; and
(xiii) it is not the subject of a store closing, liquidation, going-out-of business or similar sale.
Environmental Certificate - the Certificate Regarding Environmental Matters executed by a
Senior Officer on June 10, 1998, and containing representations and warranties concerning each
Borrower's and its Subsidiaries' compliance with Environmental Laws.
Environmental Laws - all federal, state, local and foreign laws, rules, regulations, codes,
ordinances, orders and consent decrees (together with all programs, permits and guidance documents
promulgated by regulatory agencies, to the extent having the force of law), now or hereafter in effect,
that relate to public health (but excluding occupational safety and health, to the extent regulated by
OSHA) or the protection or pollution of the environment, whether new or hereafter in effect, including
CERCLA, RCRA and CWA.
Environmental Release - a release as defined in CERCLA or under any other applicable
Environmental Laws.
Equipment - all of a Borrower's machinery, apparatus, equipment, fittings, furniture, fixtures,
motor vehicles and other tangible personal Property (other than Inventory) of every kind and
description, whether now owned or hereafter acquired by such Borrower and wherever located, and all
parts, accessories and special tools therefor, all accessions thereto, and all substitutions and
replacements thereof.
Equity Interest - the interest of (i) a shareholder in a corporation, (ii) a partner (whether
general or limited) in a partnership (whether general, limited or limited liability), (iii) a member in
a limited liability company, or (iv) any other Person having any other form of equity security or
ownership interest.
ERISA - the Employee Retirement Income Security Act of 1974 and all rules and regulations from
time to time promulgated thereunder.
Event of Default - as defined in Section 11 of the Agreement.
Exchange Note - a note or other similar security that is registered under the Securities Act of
1933 and that is exchanged for a Senior Subordinated Note.
Extraordinary Expenses - all costs, expenses, fees (including fees incurred to Agent
Professionals) or advances that Agent or any Lender may suffer or incur, whether prior to or after the
occurrence of an Event of Default, and whether prior to, after or during the pendency of an Insolvency
Proceeding of an Obligor, on account of or in connection with (i) the audit, inspection, repossession,
storage, repair, appraisal, insuring, completion of the manufacture of, preparing for sale, advertising
for sale, selling, collecting or otherwise preserving or realizing upon any Collateral; (ii) the defense
of Agent's Lien upon any Collateral or the priority thereof or any adverse claim with respect to the
Loans, the Loan Documents or the Collateral asserted by any Obligor, any receiver or trustee for
any Obligor or any creditor or representative of creditors of any Obligor; (iii) the settlement or
satisfaction of any Liens upon any Collateral (whether or not such Liens are Permitted Liens); (iv) the
collection or enforcement of any of the Obligations; (v) the negotiation, documentation, and closing of
any restructuring or forbearance agreement with respect to the Loan Documents or Obligations;
(vi) amounts advanced by Agent pursuant to Section 7.1.3 of the Agreement; (vii) the enforcement of any
of the provisions of any of the Loan Documents; or (viii) any payment under a guaranty, indemnity or
other payment agreement provided by Agent or (with Agent's consent) any Lender, which is reimbursable to
Agent or such Lender by Borrowers pursuant to Section 2.4.2 of the Agreement. Such costs, expenses and
advances may include transfer fees, taxes, storage fees, insurance costs, permit fees, utility
reservation and standby fees, legal fees, appraisal fees, brokers' fees and commissions, auctioneers'
fees and commissions, accountants' fees, environmental study fees, wages and salaries paid to employees
of any Borrower or independent contractors in liquidating any Collateral, travel expenses, all other
fees and expenses payable or reimbursable by Borrowers or any other Obligor under any of the Loan
Documents, and all other fees and expenses associated with the enforcement of rights or remedies under
any of the Loan Documents, but excluding compensation paid to employees (including inside legal counsel
who are employees) of Agent.
Federal Funds Rate - for any period, a fluctuating interest rate per annum equal for each date
during such period to the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) in Atlanta, Georgia by the
Federal Reserve Bank of Atlanta, or if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions received by Agent from 3 federal
funds brokers of recognized standing selected by Agent.
FEIN - with respect to any Person, the Federal Employer Identification Number of such Person.
Financial Covenant Trigger Date - means the date on which Availability at any time is less than
$20,000,000; and Borrower shall comply with all financial covenants set forth in Section 9.3 of the
Agreement for all periods during and after which a Financial Covenant Trigger Date occurs
notwithstanding the fact that a portion of such period may have expired prior to the Financial Covenant
Trigger Date.
Fiscal Quarter - each consecutive period of 13 weeks beginning on the first day of a Fiscal
Year (and, in the case of any Fiscal Year of 53 weeks, the 14-week period occurring at the end thereof).
Fiscal Year - the fiscal year of Borrowers and their Subsidiaries for accounting and
tax purposes, which ends on the Saturday nearest September 30th of each year.
Fleet - Fleet Capital Corporation, a Rhode Island corporation.
Fleet Indemnitees - Fleet and all of its present and future officers, directors and agents.
FLSA - the Fair Labor Standards Act of 1938.
Foreign Contractor - a Person that processes Inventory of a Borrower and that is located
outside of the United States.
Foreign Lender - any Lender that is organized under the laws of a jurisdiction other than the
laws of the United States, any state thereof or the District of Columbia.
Foreign Subsidiary - a Subsidiary that is not a Domestic Subsidiary.
Funded Debt - all Debt for Money Borrowed which would, in accordance with GAAP, constitute long
term debt, including (a) any Debt with a maturity more than one year after the creation thereof and (b)
any Debt for Money Borrowed which is renewable or extendable at the option of a Borrower for a period of
more than one year from the date of creation of such Debt for Money Borrowed, including the Revolver
Loans.
GAAP - generally accepted accounting principles in the United States of America in effect from
time to time.
General Intangibles - all general intangibles of a Borrower, whether now owned or hereafter
created or acquired by such Borrower, including all choses in action, causes of action, company or other
business records, inventions, blueprints, designs, patents, patent applications, trademarks, trademark
applications, trade names, trade secrets, service marks, goodwill, brand names, copyrights,
registrations, licenses, franchises, customer lists, permits, tax refund claims, computer programs,
operational manuals, internet addresses and domain names, insurance refunds and premium rebates, all
claims under guaranties, security interests or other security held by or granted to such Borrower to
secure payment of any of any of such Borrower's Accounts by an Account Debtor, all rights to
indemnification and all other intangible property of such Borrower of every kind and nature (other than
Accounts).
Goods - shall have the meaning given to "goods" in the UCC.
Governmental Approvals - all authorizations, consents, approvals, licenses and exemptions of,
registrations and filings with, and reports to, all Governmental Authorities.
Governmental Authority - any federal, state, municipal, national, foreign or other
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the District of Columbia or a foreign entity or government.
Guarantors - each Domestic Subsidiary and each other Person who guarantees payment or
performance of the whole or any part of the Obligations.
Guaranty - each guaranty agreement now or hereafter executed by a Guarantor in favor of Agent
with respect to any of the Obligations.
Hedging Agreement - any Interest Rate Contract, foreign currency exchange agreement, commodity
price protection agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
Hedging Agreement Reserve - on any date, a reserve imposed by Agent in its discretion, or at
the direction of the Required Lenders, equal to the aggregate amount of the estimated liability of
Borrowers and their respective Subsidiaries under all Hedging Agreements with Bank.
Indemnified Amount - in the case of Agent Indemnitees, the amount of any loss, cost, expenses
or damages suffered or incurred by Agent Indemnitees and against which Lenders or any Obligor have
agreed to indemnify Agent Indemnitees pursuant to the terms of the Agreement or any of the other Loan
Documents; in the case of Lender Indemnitees, the amount of any loss, cost, expenses or damages suffered
or incurred by Lender Indemnitees and against which Lender or any Obligor have agreed to indemnify
Lender Indemnitees pursuant to the terms of the Agreement or any of the other Loan Documents; and, in
the case of Fleet Indemnitees, the amount of any loss, cost, expenses or damages suffered or incurred by
Fleet Indemnitees and against which Lenders or any Obligor have agreed to indemnify Fleet Indemnitees
pursuant to the terms of the Agreement or any of the other Loan Documents.
Indemnified Claim - any and all claims, demands, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, awards, remedial response costs, expenses or disbursements of any
kind or nature whatsoever (including reasonable attorneys', accountants', consultants' or paralegals'
fees and expenses), whether arising under or in connection with the Loan Documents, any Applicable Law
(including any Environmental Laws) or otherwise, that may now or hereafter be suffered or incurred by
any Indemnitee and whether suffered or incurred in or as a result of any investigation, litigation,
arbitration or other judicial or non-judicial proceeding or any appeals related thereto.
Indemnitees - the Agent Indemnitees, the Lender Indemnitees and the Fleet Indemnitees.
Initial Lenders - Fleet, Wachovia Bank, National Association and Bank of America, N.A., each in
its capacity as a Lender under the Agreement on the Closing Date.
Insolvency Proceeding - any action, case or proceeding commenced by or against a Person, or any
agreement of such Person, for (i) the entry of an order for relief under any chapter of the Bankruptcy
Code or other insolvency or debt adjustment law (whether state, federal or foreign), (ii) the
appointment of a receiver, trustee, liquidator or other custodian for such Person or any part of
its Property, (iii) an assignment or trust mortgage for the benefit of creditors of such Person, or
(iv) the liquidation, dissolution or winding up of the affairs of such Person.
Instrument - shall have the meaning ascribed to the term "instrument" in the UCC.
Intellectual Property - all intellectual and similar Property of a Person of every kind and
description, including inventions, designs, patents, patent applications, copyrights, trademarks,
service marks, tradenames, mask works, trade secrets, confidential or proprietary information, know-how,
software and databases and all embodiments or fixations thereof and related documentation, registrations
and franchises, all books and records describing or used in connection with the foregoing and all
licenses, or other rights to use any of the foregoing.
Intellectual Property Claim - the assertion by any Person of a claim (whether asserted in
writing, by action, suit or proceeding or otherwise) that any Borrower's ownership, use, marketing, sale
or distribution of any Inventory, Equipment, Intellectual Property or other Property is violative of any
ownership or right to use any Intellectual Property of such Person.
Interest Period - shall have the meaning ascribed to it in Section 2.1.3 of the Agreement.
Interest Rate Contract - any interest rate agreement, interest rate collar agreement,
interest rate swap agreement, or other agreement or arrangement at any time entered into by any or all
Borrowers with Bank that is designed to protect against fluctuations in interest rates.
Inventory - shall have the meaning ascribed to the term "inventory" in the UCC and shall
include all goods intended for sale or lease by a Borrower, or for display or demonstration; all work in
process, all raw materials and other materials and supplies of every nature and description used or
which might be used in connection with the manufacture, printing, packing, shipping, advertising,
selling, leasing or furnishing such goods or otherwise used or consumed in such Borrower's business (but
excluding Equipment).
Inventory Formula Amount - on any date of determination thereof, an amount equal to the lesser
of (i) $55,000,000 or (ii) 85%, or such lesser percentage as Agent may in its sole credit judgment
determine from time to time, of the Net Orderly Liquidation Value of Eligible Inventory.
Inventory Reserve - such reserves as may be established from time to time by Agent with respect
to reflect changes in the saleability of any Eligible Inventory in the Ordinary Course of Business or
such other factors as may negatively impact the Value of any Eligible Inventory. Without limiting the
generality of the foregoing, such reserves may include reserves based on obsolescence, seasonality,
theft or other shrinkage, imbalance, change in composition or mix, or markdowns.
Inverse Inventory Percentage - 100% minus the inverse of the Net Orderly Liquidation Value
Percentage.
Investment Property - shall have the meaning given to "investment property" in the UCC and
shall include all Securities (whether certificated or uncertificated), security entitlements, securities
accounts, commodity contracts and commodity accounts.
LC Application - an application by any or all Borrowers to Bank (on which Fleet may be a
co-applicant), pursuant to a form approved by Bank, for the issuance of a Letter of Credit, that is
submitted to Bank at least 3 Business Days prior to the requested issuance of such Letter of Credit.
LC Conditions - the following conditions, the satisfaction of each of which is required before
Fleet shall be obligated to provide any LC Support to Bank for the issuance of a Letter of Credit:
(i) each of the conditions set forth in Section 10 of the Agreement has been and continues to be
satisfied, including the absence of any Default or Event of Default; (ii) after giving effect to the
issuance of the requested Letter of Credit and all other unissued Letters of Credit for which an LC
Application has been signed by Fleet, the LC Outstandings would not exceed $50,000,000 with respect to
documentary Letters of Credit and $5,000,000 with respect to standby Letters of Credit and no
Out-of-Formula Condition would exist, and, if no Revolver Loans are outstanding, the LC Outstandings do
not, and would not upon the issuance of the requested Letter of Credit, exceed the Borrowing Base;
(iii) such Letter of Credit has an expiration date that is no more than 365 days from the date of
issuance in the case of standby letters of credit and no more than 180 days from the date of issuance in
the case of documentary letters of credit and, in either event, such expiration date is at least 30 days
prior to the last Business Day of the Term; and (iv) the currency in which payment is to be made under
the Letter of Credit is Dollars.
LC Documents - any and all agreements, instruments and documents (other than an LC Application
or an LC Support) required by Bank or other issuer of a Letter of Credit to be executed by Borrowers or
any other Person and delivered to Bank or such issuer for the issuance of a Letter of Credit.
LC Facility - a subfacility of the Revolver Facility established pursuant to Section 1.3 of the
Agreement.
LC Outstandings - on any date of determination thereof, an amount (in Dollars) equal to the sum
of (i) all amounts then due and payable by any Obligor on such date by reason of any payment made on or
before such date by Fleet under any LC Support plus (ii) the aggregate undrawn amount of all Letters of
Credit which are then outstanding or for which an LC Application has been delivered to and accepted by
Bank under an LC Application theretofore submitted to Bank.
LC Request - a Letter of Credit Procurement Request from Borrowers to Fleet in the form of
Exhibit I annexed hereto.
LC Reserve - at any date, the sum of (i) the Inverse Inventory Percentage of the face amount of
all documentary Letters of Credit outstanding on such date, plus (ii) 100% of the face amount of all
standby Letters of Credit outstanding on such date.
LC Support - a guaranty or other support agreement from Fleet in favor of Bank pursuant to
which Fleet shall guarantee or otherwise assure the payment or performance by the parties (other than
Fleet, if a party) to an LC Application of such parties' obligations with respect to such Letter of
Credit, including the obligation of such parties to reimburse Bank for any payment made by Bank under
such Letter of Credit.
Lender Indemnitee - a Lender in its capacity as a lender under the Agreement and its present
and future officers, directors, agents and attorneys.
Lenders - Fleet (whether in its capacity as a provider of Loans under Section 1 of
the Agreement, as the provider of Settlement Loans under Section 3.1.3 of the Agreement, or as the
procurer of Letters of Credit under Section 1.3 of the Agreement) and any other Person who may from time
to time become a "Lender" under the Agreement.
Letter of Credit - any standby letter of credit or documentary letter of credit issued by Bank
for the account of Borrowers.
Letter-of-Credit Right - a right of a Borrower to payment or performance under a letter of
credit (whether the letter of credit is written or electronic), whether or not such Borrower has
demanded or is at the time entitled to demand payment or performance.
LIBOR Lending Office - with respect to a Lender, the office designated as a LIBOR Lending
Office for such Lender on the signature page hereof (or on any Assignment and Acceptance, in the case of
an assignee) and such other office of such Lender or any of its Affiliates that is hereafter designated
by written notice to Agent.
LIBOR Loan - a Loan, or portion thereof, during any period in which it bears interest at a rate
based upon the applicable Adjusted LIBOR Rate.
LIBOR Rate - with respect to an Interest Period, the rate per annum reported to Agent by Bank
as the rate at which deposits of U.S. Dollars approximately equal in principal amount to or comparable
to the amount of the LIBOR Loan to which such Interest Period relates and for a term comparable to such
Interest Period are offered to Bank by prime banks in the London interbank foreign currency deposits
market at approximately 11:00 a.m., London time, 2 Business Days prior to the commencement of such
Interest Period. Each determination by Agent of any LIBOR Rate shall, in the absence of any manifest
error, be conclusive.
License Agreement - any agreement between a Borrower and a Licensor pursuant to which such
Borrower is authorized to use any Intellectual Property in connection with the manufacturing, marketing,
sale or other distribution of any Inventory of such Borrower.
Licensor - any Person from whom a Borrower obtains the right to use (whether on an exclusive or
non-exclusive basis) any Intellectual Property in connection with such Borrower's manufacture,
marketing, sale or other distribution of any Inventory.
Licensor/Lender Agreement - an agreement between Agent and a Licensor by which Agent is given
the unqualified right, vis-a-vis such Licensor, to enforce Agent's Liens with respect to and to dispose
of a Borrower's Inventory with the benefit of any Intellectual Property applicable thereto, irrespective
of such Borrower's default under any License Agreement with such Licensor and which is otherwise in form
and substance satisfactory to Agent.
Lien - any interest in Property securing an obligation owed to, or a claim by, a Person other
than the owner of the Property, whether such interest is based on common law, statute or contract. The
term "Lien" shall also include reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting
Property. For the purpose of the Agreement, a Borrower shall be deemed to be the owner of any Property
which it has acquired or holds subject to a conditional sale agreement or other arrangement pursuant to
which title to the Property has been retained by or vested in some other Person for security purposes.
Lien Waiver - an agreement duly executed in favor of Agent, in form and content acceptable to
Agent, by which (i) for locations leased by an Obligor, an owner or mortgagee of premises upon which any
Property of an Obligor is located agrees to waive or subordinate any Lien it may have with respect to
such Property in favor of Agent's Lien therein and to permit Agent to enter upon such premises and
remove such Property or to use such premises to store or dispose of such Property, or (ii) for locations
at which any Obligor places Inventory with a warehouseman or a processor, such warehouseman or processor
agrees to waive or subordinate any Lien it may have with respect to such Property in favor of Agent's
Lien therein and to permit Agent to enter upon such premises and remove such Property or to use such
premises to store or dispose of such Property.
Loan - a Revolver Loan (and each Base Rate Loan and LIBOR Loan comprising such Loan).
Loan Account - the loan account established by each Lender on its books pursuant to Section 4.8
of the Agreement.
Loan Documents - the Agreement, the Other Agreements and the Security Documents.
Loan Year - a period commencing each calendar year on the same month and day as the date of the
Agreement and ending on the same month and day in the immediately succeeding calendar year, with the
first such period (i.e. the first Loan Year) to commence on the date of the Agreement.
Margin Stock - shall have the meaning ascribed to it in Regulation U and of the Board of
Governors.
Material Adverse Effect - the effect of any event, condition, action, omission or circumstance,
which, alone or when taken together with other events, conditions, actions, omissions or circumstances
occurring or existing concurrently therewith, (i) has a material adverse effect upon the business,
operations, Properties or condition (financial or otherwise) of any Obligor; (ii) has or could be
reasonably expected to have any material adverse effect whatsoever upon the validity or enforceability
of the Agreement or any of the other Loan Documents; (iii) has any material adverse effect upon the
value of the whole or any material part of the Collateral, the Liens of Agent with respect to the
Collateral or the priority of any such Liens; (iv) materially impairs the ability of any other Obligor
to perform its obligations under this Agreement or any of the other Loan Documents, including repayment
of any of the Obligations when due; or (v) materially impairs the ability of Agent or any Lender to
enforce or collect the Obligations or realize upon any of the Collateral in accordance with the Loan
Documents and Applicable Law.
Material Contract - an agreement to which an Obligor is a party (other than the Loan Documents)
(i) which is deemed to be a material contract as provided in Regulation S-K promulgated by the SEC under
the Securities Act of 1933 or (ii) for which breach, termination, cancellation, nonperformance or
failure to renew could reasonably be expected to have a Material Adverse Effect.
Maximum Rate - the maximum non-usurious rate of interest permitted by Applicable Law that at
any time, or from time to time, may be contracted for, taken, reserved, charged or received on the Debt
in question or, to the extent that at any time Applicable Law may thereafter permit a higher maximum
non-usurious rate of interest, then such higher rate. Notwithstanding any other provision hereof, the
Maximum Rate shall be calculated on a daily basis (computed on the actual number of days elapsed over a
year of 365 or 366 days, as the case may be).
Money Borrowed - as applied to any Obligor, without duplication, (i) Debt arising from the
lending of money by any other Person to such Obligor; (ii) Debt, whether or not in any such case arising
from the lending of money by another Person to such Obligor, (A) which is represented by notes payable
or drafts accepted that evidence extensions of credit, (B) which constitutes obligations evidenced by
bonds, debentures, notes or similar instruments, or (C) upon which interest charges are customarily paid
(other than accounts payable) or that was issued or assumed as full or partial payment for Property;
(iii) Debt that constitutes a Capitalized Lease Obligation; and (iv) Debt of such Obligor under any
guaranty of obligations that would constitute Debt for Money Borrowed under clauses (i) through (iii)
hereof, if owed directly by such Obligor; but excluding reimbursement obligations with respect to
letters of credit or guaranties of letters of credit.
Xxxxx'x - Xxxxx'x Investors Services, Inc.
Multiemployer Plan - has the meaning set forth in Section 4001(a)(3) of ERISA.
Net Disposition Proceeds - with respect to a disposition of any Collateral, proceeds (including
cash receivable (when received) by way of deferred payment) received by a Borrower in cash from the
sale, lease, transfer or other disposition of Collateral, including insurance proceeds and awards of
compensation received with respect to the destruction or condemnation of all or part of the Collateral,
net of: (i) the reasonable and customary costs and expenses of such sale, lease, transfer or other
disposition (including legal fees and sales commissions); (ii) amounts applied to repayment of Debt
(other than the Obligations) secured by a Permitted Lien on such Collateral disposed of that is senior
to Agent's Liens; and (iii) in connection with any sale of Collateral, a reasonable reserve (not to
exceed 5% of the total purchase price) for post-closing adjustments to the purchase price, provided that
upon the expiration of not more than 90 days after the sale any remaining reserve balance is remitted to
Agent for application to the Obligations.
Net Orderly Liquidation Value - at any time, with respect to any Inventory means, as determined
by the most recent Orderly Liquidation Value Appraisal, a net dollar amount expected to be realized at
an orderly negotiated sale of such Inventory held within a reasonable period of time.
Net Orderly Liquidation Value Percentage - on any date of determination thereof, a fraction the
numerator of which shall be the Net Orderly Liquidation Value and the denominator of which shall be the
book value of Borrower's Inventory as of the date of the most recent Orderly Liquidation Value Appraisal.
Notes - each Revolver Note and any other promissory note executed by Borrowers at Agent's
request to evidence any of the Obligations.
Notice of Borrowing - as defined in Section 3.1.1(i) of the Agreement.
Notice of Conversion/Continuation - as defined in Section 2.1.2(ii) of the Agreement.
Obligations - in each case, whether now in existence or hereafter arising, (i) the principal
of, and interest and premium, if any, on, the Loans; (ii) all LC Outstandings and all other obligations
of any Obligor to Agent, Fleet or Bank arising in connection with the issuance of any Letter of Credit;
(iii) all Debt and other obligations of Borrowers to Agent, Fleet, any Lender or Bank under or
in connection with any Cash Management Agreements, Hedging Agreement, Interest Rate Contract or Currency
Contract, including any premature termination or breakage costs; and (iv) all other Debts, covenants,
duties and obligations (including Contingent Obligations) now or at any time or times hereafter owing by
any Obligor to Agent or any Lender under or pursuant to the Agreement or any of the other Loan
Documents, whether evidenced by any note or other writing, whether arising from any extension of credit,
opening of a letter of credit, acceptance, loan, guaranty, indemnification or otherwise and whether
direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or
several, including all interest, charges, expenses, fees or other sums (including Extraordinary
Expenses) chargeable to any or all Obligors hereunder or under any of the other Loan Documents.
Obligor - each Borrower and each Guarantor, and any other Person that is at any time liable for
the payment of the whole or any part of the Obligations or that has granted in favor of Agent a Lien
upon any of any of such Person's assets to secure payment of any of the Obligations.
Orderly Liquidation Value Appraisal - an appraisal, in form and substance satisfactory to
Agent, conducted by The Ozer Group or such other appraisal company of similar qualifications and
standing acceptable to Agent pursuant to which such appraisal company determines the expected dollar
amount to be realized at an orderly negotiated sale of the Inventory held within a reasonable period of
time.
Ordinary Course of Business - with respect to any transaction involving any Person,
the ordinary course of such Person's business, as conducted by such Person in accordance with
past practices and undertaken by such Person in good faith and not for the purpose of evading
any covenant or restriction in any Loan Document.
Organization Documents - with respect to any Person, its charter, certificate or articles of
incorporation, bylaws, articles of organization, operating agreement, members agreement, partnership
agreement, voting trust, or similar agreement or instrument governing the formation or operation of such
Person.
OSHA - the Occupational Safety and Hazard Act of 1970.
Other Agreements - the Notes, each LC Support, the Environmental Certificate, and any and all
agreements, instruments and documents (other than the Agreement and the Security Documents), heretofore,
now or hereafter executed by any Borrower, any Obligor or any other Person and delivered to Agent or any
Lender in respect of the transactions contemplated by the Agreement.
Out-of-Formula Condition - as defined in Section 1.1.2 of the Agreement.
Out-of-Formula Loan - a Revolver Loan made or existing when an Out-of-Formula Condition exists
or the amount of any Revolver Loan which, when funded, results in an Out-of-Formula Condition.
Participant - as defined in Section 13.2.1.
Participating Lender - as defined in Section 1.3.2(i).
Patent Assignment - each Patent Collateral Assignment and Security Agreement executed by
Borrowers in favor of Agent on June 10, 1998 and by which Borrowers have assigned to Agent, for its
benefit as Agent and for the Pro Rata benefit of Lenders, as security for the Obligations, all of
Borrowers' right, title and interest in and to the patents described therein.]
Payment Account - an account maintained by Agent to which all monies from time to time
deposited to a Dominion Account shall be transferred and all other payments shall be sent in immediately
available federal funds.
Payment Items - all checks, drafts, or other items of payment payable to a Borrower, including
proceeds of any of the Collateral.
Pending Revolver Loans - at any date, the aggregate principal amount of all Revolver Loans
which have been requested in any Notice of Borrowing received by Agent but which have not theretofore
been advanced by Agent or Lenders.
Permitted Contingent Obligations - Contingent Obligations arising from endorsements of Payment
Items for collection or deposit in the Ordinary Course of Business; Contingent Obligations arising from
Interest Rate Contracts entered into in the Ordinary Course of Business pursuant to this Agreement or
with Agent's prior written consent; Contingent Obligations of any Borrower and its Subsidiaries existing
as of the Closing Date, including extensions and renewals thereof that do not increase the amount of
such Contingent Obligations as of the date of such extension or renewal; Contingent Obligations incurred
in the Ordinary Course of Business with respect to surety bonds, appeal bonds, performance bonds and
other similar obligations; Contingent Obligations arising under indemnity agreements to title insurers
to cause such title insurers to issue to Agent title insurance policies; Contingent Obligations with
respect to customary indemnification obligations in favor of purchasers in connection with dispositions
of Equipment permitted under Section 7.4.2 of the Agreement; Contingent Obligations consisting of
reimbursement obligations from time to time owing by any Borrower to Bank with respect to Letters of
Credit (but in no event to include reimbursement obligations at any time owing by a Borrower to any
other Person that may issue letters of credit for the account of Borrowers); and other Contingent
Obligations not to exceed $500,000 in the aggregate at any time.
Permitted Lien - a Lien of a kind specified in Section 9.2.5 of the Agreement.
Permitted Purchase Money Debt - Purchase Money Debt of Borrowers and their Subsidiaries that is
secured by no Lien or only by a Purchase Money Lien, provided that the aggregate amount of Purchase
Money Debt outstanding at any time does not exceed $1,000,000 and the incurrence of such Purchase Money
Debt does not violate any limitation in the Loan Documents regarding Capital Expenditures. For the
purposes of this definition, the principal amount of any Purchase Money Debt consisting of capitalized
leases shall be computed as a Capitalized Lease Obligation.
Person - an individual, partnership, corporation, limited liability company, limited liability
partnership, joint stock company, land trust, business trust, or unincorporated organization, or a
Governmental Authority.
Plan - an employee benefit plan now or hereafter maintained for employees of a Borrower that is
covered by Title IV of ERISA.
Pledge Agreements - each Stock Pledge Agreement executed by a Borrower in favor of Agent and by
which such Borrower has pledged to Agent, for its benefit as Agent and for the Pro Rata benefit of
Lender's, as security for the Obligations, 66% of the capital stock of each Foreign Subsidiary of such
Borrower and all of the capital stock of each Domestic Subsidiary of such Borrower.
Pro Rata - a share of or in all Loans, participations in LC Outstandings, liabilities,
payments, proceeds, collections, Collateral and Extraordinary Expenses, which share for any Lender on
any date shall be a percentage (expressed as a decimal, rounded to the ninth decimal place) arrived at
by dividing the amount of the Commitment of such Lender on such date by the aggregate amount of the
Commitments of all Lenders on such date (provided, that, if the Commitments have been terminated, solely
for purposes of this definition and the calculations herein, the Commitments shall be deemed to survive).
Projections - (i) prior to the Closing Date and thereafter until Agent and Lenders receive new
projections pursuant to Section 9.1.5 hereof, the projections of Borrowers dated May 8, 2003.
Properly Contested - in the case of any Debt of an Obligor (including any Taxes) that is not
paid as and when due or payable by reason of such Obligor's bona fide dispute concerning its liability
to pay same or concerning the amount thereof, (i) such Debt is being properly contested in good faith by
appropriate proceedings promptly instituted and diligently conducted; (ii) such Obligor has established
appropriate reserves as shall be required in conformity with GAAP; (iii) the non-payment of such Debt
will not have a Material Adverse Effect and will not result in a forfeiture of any assets of such
Obligor; (iv) no Lien is imposed upon any of such Obligor's assets with respect to such Debt unless such
Lien is at all times junior and subordinate in priority to the Liens in favor of Agent (except only with
respect to property taxes that have priority as a matter of applicable state law) and enforcement of
such Lien is stayed during the period prior to the final resolution or disposition of such dispute; (v)
if the Debt results from, or is determined by the entry, rendition or issuance against an Obligor or any
of its assets of a judgment, writ, order or decree, enforcement of such judgment, writ, order or decree
is stayed pending a timely appeal or other judicial review; and (vi) if such contest is abandoned,
settled or determined adversely (in whole or in part) to such Obligor, such Obligor forthwith pays such
Debt and all penalties, interest and other amounts due in connection therewith.
Property - any interest in any kind of property or asset, whether real, personal or mixed and
whether tangible or intangible.
Purchase Money Debt - means and includes (i) Debt (other than the Obligations) for the payment
of all or any part of the purchase price of any fixed assets, (ii) any Debt (other than the Obligations)
incurred at the time of or within 10 days prior to or after the acquisition of any fixed assets for the
purpose of financing all or any part of the purchase price thereof, and (iii) any renewals, extensions
or refinancings (but not any increases in the principal amounts) thereof outstanding at the time.
Purchase Money Lien - a Lien upon fixed assets which secures Purchase Money Debt, but only if
such Lien shall at all times be confined solely to the fixed assets acquired through the incurrence of
the Purchase Money Debt secured by such Lien and such Lien constitutes a purchase money security
interest under the UCC.
RCRA - the Resource Conservation and Recovery Act (42 X.X.X.xx.xx. 6991-6991i) and all rules and
regulations promulgated pursuant thereto.
Refinancing Conditions - the following conditions, each of which must be satisfied before
Refinancing Debt shall be permitted under Section 9.2.3 of the Agreement: (i) the Refinancing Debt is in
an aggregate principal amount that does not exceed the aggregate principal amount of the Debt being
extended, renewed or refinanced, (ii) the Refinancing Debt has a later or equal final maturity and a
longer or equal weighted average life than the Debt being extended, renewed or refinanced, (iii) the
Refinancing Debt does not bear a rate of interest that exceeds a market rate (as determined in good
faith by a Senior Officer) as of the date of such extension, renewal or refinancing, (iv) if the Debt
being extended, renewed or refinanced is subordinate to the Obligations, the Refinancing Debt is
subordinated to the same extent, (v) the covenants contained in any instrument or agreement relating to
the Refinancing Debt are no less favorable to Borrowers than those relating to the Debt being extended,
renewed or refinanced, and (vi) at the time of and after giving effect to such extension, renewal or
refinancing, no Default or Event of Default shall exist.
Refinancing Debt - Debt for Money Borrowed that is permitted by Section 9.2.3 and that is the
subject or the result of an extension, renewal or refinancing.
Regulation D - Regulation D of the Board of Governors.
Register - the register maintained by Agent in accordance with Section 4.8.2 of the Agreement.
Reimbursement Date - as defined in Section 1.3.1(iii) of the Agreement.
Rentals - as defined in Section 9.2.13 of the Agreement.
Reportable Event - any of the events set forth in Section 4043(b) of ERISA.
Required Lenders - at any date of determination thereof, Lenders having Commitments
representing at least 51% of the aggregate Commitments at such time; provided, however, that if any
Lender shall be in breach of any of its obligations hereunder to Borrowers or Agent, including any
breach resulting from its failure to honor its Commitment in accordance with the terms of this
Agreement, then, for so long as such breach continues, the term "Required Lenders" shall mean Lenders
(excluding each Lender that is in breach of its obligations under the Agreement) having Commitments
representing at least 51% of the aggregate Commitments (excluding the Commitments of each Lender that is
in breach of its obligations under the Agreement) at such time; provided further, however, that if the
Commitments have been terminated, the term "Required Lenders" shall mean Lenders (excluding each Lender
that is in breach of its obligations hereunder) holding Loans (including Settlement Loans) representing
at least 51% of the aggregate principal amount of Loans (including Settlement Loans) outstanding at such
time.
Restricted Investment - any acquisition of Property by a Borrower or any of its Subsidiaries in
exchange for cash or other Property, whether in the form of an acquisition of Equity Interests or Debt,
or the purchase or acquisition by such Borrower or any of its Subsidiary of any other Property, or a
loan, advance, capital contribution or subscription, except acquisitions of the following: (i) fixed
assets to be used in the Ordinary Course of Business of such Borrower or any of its Subsidiaries so long
as the acquisition costs thereof constitute Capital Expenditures permitted hereunder; (ii) goods held
for sale or lease or to be used in the manufacture of goods or the provision of services by such
Borrower or any of its Subsidiaries in the Ordinary Course of Business; (iii) Current Assets arising
from the sale or lease of goods or the rendition of services in the Ordinary Course of Business of such
Borrower or any of its Subsidiaries; (iv) investments in Subsidiaries to the extent existing on the
Closing Date; and (v) Cash Equivalents to the extent they are not subject to rights of offset in favor
of any Person other than Agent or a Lender; (vi) loans and other advances of money to the extent not
prohibited by Section 9.2.2.
Restrictive Agreement - an agreement (other than any of the Loan Documents) that, if and for so
long as an Obligor or any Subsidiary of such Obligor is a party thereto, would prohibit, condition or
restrict such Obligor's or Subsidiary's right to incur or repay Debt for Money Borrowed (including any
of the Obligations); grant Liens upon any of such Obligor's or Subsidiary's assets (including Liens
granted in favor of Agent pursuant to the Loan Documents); declare or make Distributions; amend, modify,
extend or renew any agreement evidencing Debt for Money Borrowed (including any of the Loan Documents);
or repay any Debt owed to another Obligor.
Revolver Commitment - at any date for any Lender, the obligation of such Lender to make
Revolver Loans and to purchase participations in LC Outstandings pursuant to the terms and conditions of
the Agreement, which shall not exceed the principal amount set forth opposite such Lender's name under
the heading "Revolver Commitment" on the signature pages of the Agreement or the signature page of the
Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the
terms of the Agreement or to give effect to any applicable Assignment and Acceptance; and "Revolver
Commitments" means the aggregate principal amount of the Revolver Commitments of all Lenders, the
maximum amount of which shall be $95,000,000.
Revolver Loan - a loan made by Lenders as provided in Section 1.1 of the Agreement (including
any Out-of-Formula Loan) or a Settlement Loan funded solely by Fleet.
Revolver Note - a Revolver Note to be executed by Borrowers in favor of each Lender in the form
of Exhibit A attached hereto, which shall be in the face amount of such Lender's Revolver Commitment and
which shall evidence all Revolver Loans (other than Settlement Loans) made by such Lender to Borrowers
pursuant to the Agreement.
S&P - Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc.
Schedule of Accounts - as defined in Section 7.2.1 of the Agreement.
SEC - Securities and Exchange Commission.
Secured Parties - Agent, Lenders, Fleet as the procurer of Letters of Credit, Fleet as the
provider of Settlement Loans, and Bank as the issuer of Letters of Credit or as the obligee with respect
to any Banking Relationship Debt.
Security Documents - the Patent Assignment, each Guaranty, the Trademark Security Agreement,
the Deposit Account Assignment, the Business Interruption Insurance Assignment and all other instruments
and agreements now or at any time hereafter securing the whole or any part of the Obligations.
Senior Officer - the chairman of the board of directors, the president or the chief financial
officer of, or in-house legal counsel to, a Borrower.
Senior Subordinated Indenture - the Indenture dated June 10, 1998, among Tropical, certain of
its Subsidiaries and the Trustee.
Senior Subordinated Notes - the Senior Subordinated Unsecured Notes, issued by Tropical
pursuant to the Senior Subordinated Indenture in the aggregate amount of $100,000,000, and payable in
2008.
Senior Subordinated Note Repurchase Conditions - each of the following conditions, the
satisfaction of each of which is a condition to any repurchase of any of the Senior Subordinated Notes
by Borrowers: (i) Borrowers shall have provided Agent with not less than 5 Business Day's prior written
notice of its intent to place an order to repurchase any of the Senior Subordinated Notes, which notice
shall provide the aggregate amount of such order, the purchase price limit (expressed as a percentage of
the face value of such notes) for such order and a representation that the conditions set forth in
clauses (ii) through (v) below will be satisfied; (ii) no Default or Event of Default shall exist at the
time of or after giving effect to any such order; (iii) the repurchase is conducted pursuant to an open
market transaction; (iv) upon consummation of the repurchase the Senior Subordinated Notes repurchased
are cancelled by Borrowers and no longer constitute outstanding Debt of Borrowers under the Senior
Subordinated Indenture or otherwise; (v) after giving effect to such repurchase, Availability shall not
be less than $20,000,000.
Settlement Date - as defined in Section 3.1.3(i) of the Agreement.
Settlement Loan - as defined in Section 3.1.3(ii) of the Agreement.
Settlement Report - a report delivered by Agent to Lenders summarizing the amount of
the outstanding Revolver Loans as of the Settlement Date and the calculation of the Borrowing Base as of
such Settlement Date.
Solvent - as to any Person, such Person (i) owns Property whose fair saleable value is greater
than the amount required to pay all of such Person's Debts (including contingent Debts), (ii) is able to
pay all of its Debts as such Debts mature, (iii) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage, and (iv) is not
"insolvent" within the meaning of Section 101(32) of the Bankruptcy Code.
Statutory Reserves - on any date, the percentage (expressed as a decimal) established by the
Board of Governors which is the then stated maximum rate for all reserves (including any emergency,
supplemental or other marginal reserve requirements) applicable to any member bank of the Federal
Reserve System in respect to Eurocurrency Liabilities (or any successor category of liabilities under
Regulation D). Such reserve percentage shall include those imposed pursuant to said Regulation D. The
Statutory Reserve shall be adjusted automatically on and as of the effective date of any change in such
percentage.
Subordinated Debt - unsecured Debt incurred by a Borrower that is expressly subordinated and
made junior to the payment and performance in full of the Obligations and contains terms and conditions
(including terms relating to interest, fees, repayment and subordination) satisfactory to Agent and
Required Lenders, including the Senior Subordinated Notes and any Exchange Notes.
Subsidiary - any Person in which more than 20% of its outstanding Voting Securities or more
than 20% of all Equity Interests is owned directly or indirectly by a Borrower, by one or more other
Subsidiaries of such Borrower or by a Borrower and one or more other Subsidiaries.
Taxes - any present or future taxes, levies, imposts, duties, fees, assessments, deductions,
withholdings or other charges of whatever nature, including income, receipts, excise, property, sales,
use, transfer, license, payroll, withholding, social security and franchise taxes now or hereafter
imposed or levied by the United States or any other Governmental Authority and all interest, penalties,
additions to tax and similar liabilities with respect thereto, but excluding, in the case of each
Lender, taxes imposed on or measured by the net income or overall gross receipts of such Lender.
Term - as defined in Section 5.1 of the Agreement.
Trademark Security Agreement - the Trademark Security Agreement executed by Borrowers in favor
of Agent on June 10, 1998 and by which Borrowers assigned to Agent, for its benefit as Agent and for the
Pro Rata benefit of Lenders, as security for the Obligations, all of Borrowers' right, title and
interest in and to all of its trademarks described therein.
Transferee - as defined in Section 13.3.3 of the Agreement.
Trustee - SunTrust Bank, a Georgia banking corporation.
Type - any type of a Loan determined with respect to the interest option applicable thereto,
which shall be either a LIBOR Loan or a Base Rate Loan.
UCC - the Uniform Commercial Code (or any successor statute) as adopted and in force in the
State of Georgia or, when the laws of any other state govern the method or manner of the perfection or
enforcement of any security interest in any of the Collateral, the Uniform Commercial Code (or any
successor statute) of such state.
Upstream Payment - a payment or distribution of cash or other Property by a Subsidiary of a
Borrower to such Borrower, whether in repayment of Debt owed by such Subsidiary to such Borrower, as a
dividend or distribution on account of such Borrower's ownership of Equity Interests or otherwise.
Value - with reference to the value of Eligible Inventory, value determined on the basis of the
lower of cost or market of such Eligible Inventory, with the cost thereof calculated on a first-in,
first-out basis determined in accordance with GAAP.
Voting Securities - Equity Interests of any class or classes of a corporation or other entity
the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of
the corporate directors or Persons performing similar functions.
Accounting Terms. Unless otherwise specified herein, all terms of an accounting character used
in the Agreement shall be interpreted, all accounting determinations under the Agreement shall be made, and all
financial statements required to be delivered under the Agreement shall be prepared in accordance with GAAP,
applied on a basis consistent with the most recent audited Consolidated financial statements of Borrowers and
their Subsidiaries heretofore delivered to Agent and Lenders and using the same method for inventory valuation as
used in such audited financial statements, except for any change required by GAAP; provided, however, that for
purposes of determining Borrowers' compliance with financial covenants contained in Section 9.3 of the Agreement,
all accounting terms shall be interpreted and all accounting determinations shall be made in accordance with GAAP
as in effect on the date of the Agreement and applied on a basis consistent with the application used in the
financial statements referred to in Section 8.1.9 of the Agreement, unless (i ) Borrowers shall have objected to
determining such compliance on such basis at the time of delivery of such financial statements or (ii) Agent or
any Lender shall so object in writing within 30 days after the delivery of such financial statements, in either
of which events such calculations shall be made on a basis consistent with those used in the preparation of the
latest financial statements as to which such objection shall not have been made. In the event of any change in
GAAP that occurs after the date of the Agreement and that is material to Borrowers, Agent and Lenders shall have
the right to require either that conforming adjustments be made to any financial covenants set forth in the
Agreement, or the components thereof, that are affected by such change or that Borrowers report its financial
condition based on GAAP as in effect immediately prior to the occurrence of such change.
Other Terms. All other terms contained in the Agreement shall have, when the context so
indicates, the meanings provided for by the UCC to the extent the same are used or defined therein.
Certain Matters of Construction. The terms "herein," "hereof" and "hereunder" and other words
of similar import refer to the Agreement as a whole and not to any particular section, paragraph or subdivision.
Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding." The section titles, table of contents and list of exhibits appear as a matter of
convenience only and shall not affect the interpretation of the Agreement. All references to statutes and
related regulations shall include any amendments of same and any successor statutes and regulations; to any
agreement, instrument or other documents (including any of the Loan Documents) shall include any and all
modifications and supplements thereto and any and all restatements, extensions or renewals thereof to the extent
such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the
terms thereof; to any Person shall mean and include the successors and permitted assigns of such Person; to
"including" and "include" shall be understood to mean "including, without limitation" (and, for purposes of the
Agreement and each other Loan Document, the parties agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned); or to the time of day shall mean the time of day on
the day in question in Atlanta, Georgia, unless otherwise expressly provided in the Agreement. A Default or an
Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default
or Event of Default occurs to the date on which such Default or Event of Default is waived in writing by Agent
pursuant to the Agreement or, in the case of a Default, is cured within any period of cure expressly provided in
this Agreement; and an Event of Default shall "continue" or be "continuing" until such Event of Default has been
waived in writing by Lender. All calculations of Value shall be in Dollars, all Loans shall be funded in Dollars
and all Obligations shall be repaid in Dollars. Whenever the phrase "to the best of a Borrower's knowledge" or
words of similar import relating to the knowledge or the awareness of a Borrower are used in the Agreement or
other Loan Documents, such phrase shall mean and refer to (i) the actual knowledge of a Senior Officer of any
Borrower or (ii) the knowledge that a Senior Officer would have obtained if they had engaged in good faith and
diligent performance of his duties, including the making of such reasonably specific inquiries as may be
necessary of the employees or agents of a Borrower and a good faith attempt to ascertain the existence or
accuracy of the matter to which such phrase relates. Any Lien referred to in the Agreement or any of the other
Loan Documents as having been created in favor of Agent, any agreement entered into by Agent pursuant to the
Agreement or any of the other Loan Documents, any payment made by or to, or funds received by, Agent pursuant to
or as contemplated by any of the Loan Documents, or any other act taken or omitted to be taken by Agent shall,
unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted for the
benefit or account of the Agent and the Lenders.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, this Appendix has been duly executed in Atlanta, Georgia, on June 6, 2003.
BORROWERS:
ATTEST: TROPICAL SPORTSWEAR INT'L CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
ATTEST: TROPICAL SPORTSWEAR COMPANY, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
ATTEST: SAVANE INTERNATIONAL CORP.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
ATTEST: APPAREL NETWORK
CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
ATTEST: TSI BRANDS, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Vice President
[CORPORATE SEAL]
ATTEST: TSIL, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Vice President
[CORPORATE SEAL]
ATTEST: DUCK HEAD APPAREL COMPANY, LLC
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
ATTEST: DELTA MERCHANDISING, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Xxxxxx X. Xxxxxxxx, Assistant Secretary N. Xxxxx XxXxxxxxx,
Executive Vice President
[CORPORATE SEAL]
LENDERS:
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx
Title: Director
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxxxxxx
Title:Vice President
AGENT:
FLEET CAPITAL CORPORATION,
as Agent
By: /s/ Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT A
FORM OF REVOLVER NOTE
June ___, 2003
U.S. $__________.__ Atlanta, Georgia
FOR VALUE RECEIVED, the undersigned, TROPICAL SPORTSWEAR INT'L CORPORATION, a Florida corporation
("Tropical"), TROPICAL SPORTSWEAR COMPANY, INC., a Delaware corporation ("TSCI"), SAVANE INTERNATIONAL CORP., a
Texas corporation ("Savane"), APPAREL NETWORK CORPORATION, a Florida corporation ("Apparel"), TSI BRANDS, INC., a
Delaware corporation ("TSI"), TSIL, INC., a Delaware corporation ("TSIL"), DUCK HEAD APPAREL COMPANY, LLC, a
Georgia limited liability company ("Duck Head"), and DELTA MERCHANDISING, INC., a South Carolina corporation
("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL, Duck Head and Delta collectively referred to hereinafter as
"Borrowers" and individually as a "Borrower"), hereby unconditionally, and jointly and severally, promise to pay
to the order of (herein, together with any subsequent holder hereof, called
the "Holder") the principal sum of $_______________ or such lesser sum as may constitute Holder's Pro Rata share
of the outstanding principal amount of all Revolver Loans pursuant to the terms of the Loan Agreement (as defined
below) on the date on which such outstanding principal amounts become due and payable pursuant to Section 4.2 of
the Loan Agreement, in strict accordance with the terms thereof. Borrowers likewise unconditionally, and jointly
and severally, promise to pay to Holder interest from and after the date hereof on Holder's Pro Rata share of the
outstanding principal amount of Revolver Loans at such interest rates, payable at such times, and computed in
such manner as are specified in Section 2.1 of the Loan Agreement, in strict accordance with the terms thereof.
This Revolver Note ("Note") is issued pursuant to, and is one of the "Revolver Notes" referred to in,
the Amended and Restated Loan and Security Agreement dated June __, 2003 (as the same may be amended from time to
time, the "Loan Agreement"), among Borrowers, Fleet Capital Corporation, as collateral and administrative agent
(in such capacity, "Agent") for itself and the financial institutions from time to time parties thereto as
lenders ("Lenders"), and such Lenders, and Holder is and shall be entitled to all benefits thereof and of all
Loan Documents executed and delivered in connection therewith. This Note is subject to certain restrictions on
transfer or assignment as provided in the Loan Agreement. All capitalized terms used herein, unless otherwise
defined herein, shall have the meanings ascribed to such terms in the Loan Agreement.
The repayment of the principal balance of this Note is subject to the provisions of Section 4.2 of
the Loan Agreement. The entire unpaid principal balance and all accrued interest on this Note shall be due and
payable immediately upon the termination of the Commitments as set forth in Section 5.2 of the Loan Agreement.
All payments of principal and interest shall be made in Dollars in immediately available funds
as specified in the Loan Agreement.
Upon or after the occurrence of an Event of Default and for so long as such Event of Default exists, the
principal balance and all accrued interest of this Note may be declared (or shall become) due and payable in the
manner and with the effect provided in the Loan Agreement, and the unpaid principal balance hereof shall bear
interest at the Default Rate as and when provided in Section 2.1.5 of the Loan Agreement. Borrowers jointly and
severally agree to pay, and save Holder harmless against, any liability for the payment of, all costs and
expenses, including, but not limited to, reasonable attorneys' fees, if this Note is collected by or through an
attorney-at-law.
All principal amounts of Revolver Loans made by Holder to Borrowers pursuant to the Loan Agreement, and
all accrued and unpaid interest thereon, shall be deemed outstanding under this Note and shall continue to be
owing by Borrowers until paid in accordance with the terms of this Note and the Loan Agreement.
In no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof or
otherwise, shall the amount paid or agreed to be paid to Holder for the use, forbearance or detention of money
advanced hereunder exceed the highest lawful rate permissible under any law which a court of competent
jurisdiction may deem applicable hereto; and, in the event of any such payment inadvertently paid by Borrowers or
inadvertently received by Holder, such excess sum shall be, at Borrowers' option, returned to Borrowers forthwith
or credited as a payment of principal, but shall not be applied to the payment of interest. It is the intent
hereof that Borrowers not pay or contract to pay, and that Holder not receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be paid by Borrowers under Applicable
Law.
Time is of the essence of this Note. To the fullest extent permitted by Applicable Law, each Borrower,
for itself and its legal representatives, successors and assigns, expressly waives presentment, demand, protest,
notice of dishonor, notice of non-payment, notice of maturity, notice of protest, presentment for the purpose of
accelerating maturity, diligence in collection, and the benefit of any exemption or insolvency laws.
Wherever possible each provision of this Note shall be interpreted in such a manner as to be effective
and valid under Applicable Law, but if any provision of this Note shall be prohibited or invalid under Applicable
Law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or remaining provisions of this Note. No delay or failure on the part of Holder in
the exercise of any right or remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in any
default, nor shall any single or partial exercise by Holder of any right or remedy preclude any other right or
remedy. Holder, at its option, may enforce its rights against any Collateral securing this Note without Agent or
Holder enforcing its rights against any Borrower, any Guarantor of the indebtedness evidenced hereby or any other
property or indebtedness due or to become due to any Borrower. Each Borrower agrees that, without releasing or
impairing any Borrower's liability hereunder, Holder or Agent may at any time release, surrender, substitute or
exchange any Collateral securing this Note and may at any time release any party primarily or secondarily liable
for the indebtedness evidenced by this Note.
The rights of Holder and obligations of Borrowers hereunder shall be construed in accordance with and
governed by the laws (without giving effect to the conflict of law principles thereof) of the State of Georgia.
This Note is intended to take effect as an instrument under seal under Georgia law.
IN WITNESS WHEREOF, Borrowers have caused this Note to be executed under seal and delivered by its duly
authorized officers on the date first above written.
BORROWERS:
ATTEST: TROPICAL SPORTSWEAR INT'L
CORPORATION
/s/ Xxxxxx X. Xxxxxxxx
Secretary By: /s/ N. Xxxxx XxXxxxxxx
[corporate seal] Title: ExecutiveVicePresident
ATTEST: TROPICAL SPORTSWEAR COMPANY, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Secretary Title:ExecutiveVicePresident
[corporate seal]
ATTEST: SAVANE INTERNATIONAL CORP.
/s/ Xxxxxx X. Xxxxxxxx By: : /s/ N. Xxxxx XxXxxxxxx
Secretary Title:ExecutiveVicePresident
[corporate seal]
ATTEST: APPAREL NETWORK CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Secretary Title:ExecutiveVicePresident
[corporate seal]
ATTEST: TSI BRANDS, INC.
/s/ Xxxxxx X. Xxxxxxxx By: : /s/ N. Xxxxx XxXxxxxxx
Secretary Title:VicePresident
[corporate seal]
ATTEST: TSIL, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ N. Xxxxx XxXxxxxxx
Secretary Title:VicePresident
[corporate seal]
ATTEST: DUCK HEAD APPAREL
MERCHANDISING, INC.
/s/ Xxxxxx X. Xxxxxxxx By: : /s/ N. Xxxxx XxXxxxxxx
Secretary Title:ExecutiveVicePresident
[corporate seal]
ATTEST: DELTA MERCHANDISING, INC.
/s/ Xxxxxx X. Xxxxxxxx By: : /s/ N. Xxxxx XxXxxxxxx
Secretary Title:ExecutiveVicePresident
[corporate seal]
EXHIBIT C
Form of Notice of Conversion/Continuation
Date ______________,______
Fleet Capital Corporation, as Agent
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Loan Administration Officer
Re: Amended and Restated Loan and Security Agreement dated June __, 2003, by and among Tropical
Sportswear Int'l Corporation, a Florida corporation ("Tropical"), Tropical Sportswear Company,
Inc., a Delaware corporation ("TSCI"), Savane International Corp., a Texas corporation
("Savane"), Apparel Network Corporation, a Florida corporation ("Apparel"), TSI Brands, Inc., a
Delaware corporation ("TSI"), TSIL, Inc., a Delaware corporation ("TSIL"), Duck Head Apparel
Company, LLC, a Georgia limited liability company ("Duck Head"), and Delta Merchandising, Inc.,
a South Carolina corporation ("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL, Duck Head
and Delta collectively referred to hereinafter as "Borrowers" and individually as a
"Borrower"), Fleet Capital Corporation, as collateral and administrative agent for certain
Lenders from time to time parties thereto, and such Lenders (as at any time amended, the "Loan
Agreement")
Gentlemen:
This Notice of Conversion/Continuation is delivered to you pursuant to Section 2.1.2 of the Loan
Agreement. Unless otherwise defined herein, capitalized terms used herein shall have the meanings attributable
thereto in the Loan Agreement. Borrowers hereby give notice of its request as follows:
Check as applicable:
A conversion of Loans from one Type to another, as follows:
(i) The requested date of the proposed conversion is ______________, 20__ (the "Conversion
Date");
(ii) The Type of Loans to be converted pursuant hereto are presently __________________
[select either LIBOR Loans or Base Rate Loans] in the principal amount of
$_____________ outstanding as of the Conversion Date;
(iii) The portion of the aforesaid Loans to be converted on the Conversion Date is
$_____________ (the "Conversion Amount");
(iv) The Conversion Amount is to be converted into a ____________ [select either a LIBOR
Loan or a Base Rate Loan] (the "Converted Loan") on the Conversion Date.
(v) [In the event a Borrower selects a LIBOR Loan:] Borrowers hereby request that the
Interest Period for such Converted Loan be for a duration of _____ [insert length of
Interest Period].
A continuation of LIBOR Loans for new Interest Period, as follows:
(i) The requested date of the proposed continuation is _______________, 20__ (the
"Continuation Date");
(ii) The aggregate amount of the LIBOR Loans subject to such continuation is
$------------------;
(iii) The duration of the selected Interest Period for the LIBOR Loans which are the subject
of such continuation is: _____________ [select duration of applicable Interest Period];
Each Borrower hereby ratifies and reaffirms all of its liabilities and obligations under the Loan
Documents and certifies that no Default or Event of Default exists on the date hereof.
Borrowers have caused this Notice of Conversion/Continuation to be executed and delivered by their duly
authorized representative, this _______ day of ______________, 20__.
TROPICAL SPORTSWEAR INT'L CORPORATION
By:_________________________________
Title:______________________________
EXHIBIT D
Form of Notice of Borrowing
Date ______________, 20__
Fleet Capital Corporation, as Agent
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Loan Administration Officer
Re: Amended and Restated Loan and Security Agreement dated June __, 2003, by and among Tropical
Sportswear Int'l Corporation, a Florida corporation ("Tropical"), Tropical Sportswear Company,
Inc., a Delaware corporation ("TSCI"), Savane International Corp., a Texas corporation
("Savane"), Apparel Network Corporation, a Florida corporation ("Apparel"), TSI Brands, Inc., a
Delaware corporation ("TSI"), TSIL, Inc., a Delaware corporation ("TSIL"), Duck Head Apparel
Company, LLC, a Georgia limited liability company ("Duck Head"), and Delta Merchandising, Inc.,
a South Carolina corporation ("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL, Duck Head
and Delta collectively referred to hereinafter as "Borrowers" and individually as a
"Borrower"), Fleet Capital Corporation, as collateral and administrative agent for certain
Lenders from time to time parties thereto, and such Lenders (as at any time amended, the "Loan
Agreement")
Gentlemen:
This Notice of Borrowing is delivered to you pursuant to Section 3.1.1 of the Loan Agreement. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings attributable thereto in the Loan
Agreement. Borrowers hereby request a Revolver Loan in the aggregate principal amount of $______________, to be
made on _____________, _____, and to consist of:
Check as applicable: Base Rate Loans in the aggregate principal amount of $_____________
LIBOR Loans in the aggregate principal amount of $___________, with Interest Periods as follows:
(i) As to $_____________, an Interest Period of ______ month(s);
(ii) As to $_____________, an Interest Period of ______ months;
(iii) As to $_____________, an Interest Period of ______ months.
Each Borrower hereby ratifies and reaffirms all of its liabilities and obligations under the Loan
Documents and hereby certifies that no Default or Event of Default exists on the date hereof.
Borrowers have caused this Notice of Borrowing to be executed and delivered by their duly authorized
representative, this ______ day of _____________, 20__.
TROPICAL SPORTSWEAR INT'L CORPORATION
By:____________________________________
Title:______________________________
EXHIBIT E
COMPLIANCE CERTIFICATE
[Letterhead of Borrower]
__________________, 20__
Fleet Capital Corporation, as Agent
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
The undersigned, the chief financial officer of Tropical Sportswear Int'l Corporation, a Florida
corporation ("Tropical"), Tropical Sportswear Company, Inc., a Delaware corporation ("TSCI"), Savane
International Corp., a Texas corporation ("Savane"), Apparel Network Corporation, a Florida corporation
("Apparel"), TSI Brands, Inc., a Delaware corporation ("TSI"), TSIL, Inc., a Delaware corporation ("TSIL"), Duck
Head Apparel Company, LLC, a Georgia limited liability company ("Duck Head"), and Delta Merchandising, Inc., a
South Carolina corporation ("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL, Duck Head and Delta collectively
referred to hereinafter as "Borrowers" and individually as a "Borrower"), gives this certificate to Fleet Capital
Corporation ("Agent") in accordance with the requirements of Section 9.1.3 of that certain Amended and Restated
Loan and Security Agreement dated June __, 2003, among Borrowers, Agent and the Lenders referenced therein ("Loan
Agreement"). Capitalized terms used in this Certificate, unless otherwise defined herein, shall have the
meanings ascribed to them in the Loan Agreement.
1. Based upon my review of the balance sheets and statements of income of Borrowers and
their Subsidiaries for the [Fiscal Year] [quarterly period] ending __________________, 20__, copies of which are
attached hereto, I hereby certify that:
(a) Average Availability for the period commencing on __________, 20___ and
ending on _____________, 20___, was $________________;
(b) Fixed Charge Coverage Ratio is ____ to ____;
(c) Consolidated Funded Debt/Consolidated EBITDA is _____ to _____;
(d) Capital Expenditures during the period and for the Fiscal Year to date total
$_________ for Borrowers;
2. No Default exists on the date hereof, other than: __________________
________________________________________________ [if none, so state]; and
3. No Event of Default exists on the date hereof, other than __________
____________________________________________________ [if none, so state].
4. As of the date hereof, each Borrower is current in its payment of all accrued rent and
other charges to Persons who own or lease any premises where any of the Collateral is located, and there are no
pending disputes or claims regarding any Borrower's failure to pay or delay in payment of any such rent or other
charges.
5. Attached hereto is a schedule showing the calculations that support Borrowers'
compliance [non-compliance] with the financial covenants, as shown above.
Very truly yours,
-------------------------------
Chief Financial Officer
EXHIBIT F
OPINION LETTER REQUIREMENTS
With respect to each Borrower and each Guarantor, Borrowers' and such Guarantor's counsel's opinion
letter should address the following in a manner satisfactory to Agent:
1. Each Borrower's and each Guarantor's due incorporation, valid existence, good standing and qualification
as a foreign corporation.
2. Corporate name of each Borrower and each Guarantor.
3. Each Borrower's and each Guarantor's corporate power to execute, deliver and perform the Loan Documents
to which it is a signatory.
4. Each Borrower's and each Guarantor's due authorization to execute, deliver and perform the Loan
Documents to which it is a signatory, and its due execution and delivery thereof.
5. Each Borrower's and each Guarantor's execution, delivery and performance of the Loan Documents do not
(a) violate the articles or bylaws, (b) cause a breach or default by such Borrower or such Guarantor under any
agreement, (c) violate any law, regulation, judgment or order, or (d) result in or require a Lien or other
encumbrance other than in favor of Agent.
6. The number of issued and outstanding shares of stock of each Borrower.
7. The Loan Documents as legal, valid and binding obligations, enforceable against all Obligors in
accordance with their respective terms, subject to standard bankruptcy and other creditor's rights and equity
exceptions.
8. Counsel's lack of knowledge of pending or threatened litigation or other proceedings, except as
disclosed in Loan Agreement.
9. Absence of any registration, filing, consent or approval requirement of a Governmental Authority in
connection with the execution, delivery and performance of the Loan Documents.
10. Non-violation by the Loan Documents of any Applicable Law relating to interest or usury.
11. Due payment of all applicable taxes and fees required to be paid in connection with the Loans, the Loan
Documents, UCC-1 financing statements and other Security Documents.
12. Creation in favor of Agent of a duly perfected security interest in the Collateral described in the Loan
Agreement and the Security Documents.
13. Absence of violation of Section 7 of the Securities Exchange Act of 1934, as amended, any regulations
issued pursuant thereto, or Regulations T, U and X of the Board of Governors of the Federal Reserve System, by
the transactions contemplated by the Loan Documents.
14. Absence of requirement under the laws of applicable states for Agent or Lenders to qualify in such
states to enter into or enforce the provisions of the Loan Documents.
EXHIBIT G
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of ______, 20__
Reference is made to that certain Amended and Restated Loan and Security Agreement dated June __, 2003,
by and among TROPICAL SPORTSWEAR INT'L CORPORATION, a Florida corporation ("Tropical"), TROPICAL SPORTSWEAR
COMPANY, INC., a Delaware corporation ("TSCI"), SAVANE INTERNATIONAL CORP., a Texas corporation ("Savane"),
APPAREL NETWORK CORPORATION, a Florida corporation ("Apparel"), TSI BRANDS, INC., a Delaware corporation ("TSI"),
TSIL, INC., a Delaware corporation ("TSIL"), DUCK HEAD APPAREL COMPANY, LLC, a Georgia limited liability company
("Duck Head"), and DELTA MERCHANDISING, INC., a South Carolina corporation ("Delta"; Tropical, TSCI, Savane,
Apparel, TSI, TSIL, Duck Head and Delta collectively referred to hereinafter as "Borrowers" and individually as a
"Borrower"), FLEET CAPITAL CORPORATION, in its capacity as collateral and administrative agent ("Agent") for the
financial institutions from time to time party to the Loan Agreement ("Lenders"), and such Lenders. Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Loan Agreement.
________________________________ (the "Assignor") and ____________________________ (the "Assignee")
agree as follows:
1. [(A)] Assignor hereby assigns to Assignee and Assignee hereby purchases and assumes from
Assignor (i) a principal amount of $________ of the outstanding Revolver Loans held by Assignor and $___________
of participations of Assignor in LC Outstandings (which amount[s], according to the records of Agent,
represent[s] _______% of the total principal amount of outstanding Revolver Loans and LC Outstandings) and (ii) a
principal amount of $__________ of Assignor's Revolver Commitment (which amount includes Assignor's outstanding
Revolver Loans being assigned to Assignee pursuant to clause [A] (i) above and which, according to the records of
Agent, represents (____%) of the total Revolver Commitments of Lenders under the Loan Agreement) (the "Assigned
Interest"), together with an interest in the Loan Documents corresponding to the Assigned Interest. This
Agreement shall be effective from the date (the "Assignment Effective Date") on which Assignor receives both (x)
the principal amount of the Assigned Interest in the Loans on the Assignment Effective Date, if any, and (y) a
copy of this Agreement duly executed by Assignee. From and after the Assignment Effective Date, Assignee hereby
expressly assumes, and undertakes to perform, all of Assignor's obligations in respect of Assignor's Commitments
to the extent, and only to the extent, of Assignee's Assigned Interest, and all principal, interest, fees and
other amounts which would otherwise be payable to or for Assignor's account in respect of the Assigned Interest
shall be payable to or for Assignee's account, to the extent such amounts have accrued subsequent to the
Assignment Effective Date.
2. Assignor (i) represents that as of the date hereof, the aggregate of its Commitments under
the Loan Agreement (without giving effect to assignments thereof, which have not yet become effective) is
$__________, and the outstanding balance of its Loans and participations in LC Outstandings (unreduced by any
assignments thereof, which have not yet become effective) is $__________; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or representations made in or
in connection with the Loan Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Agreement or any other instrument or document furnished pursuant thereto, other
than that Assignor is the legal and beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; [and] (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers, the performance or observance by Borrowers
of any of their obligations under the Loan Agreement or any of the Loan Documents[; and (iv) attaches the Notes
held by it and requests that Agent exchange such Notes for new Notes payable to Assignee and the Assignor in the
principal amounts set forth on Schedule A hereto].
3. Assignee (i) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (ii) confirms that it has received a copy of the Loan Agreement, together with copies
of the most recent financial statements delivered pursuant to Section 9.1.3 thereof, and copies of such other
Loan Documents and information as it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (iii) agrees that it shall, independently and without reliance upon the
Assignor and based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Loan Agreement; (iv) confirms that it is
eligible to become an Assignee; (v) appoints and authorizes Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Agreement as are delegated to Agent by the terms thereof, together with
such powers as are incidental thereto; (vi) agrees that it will strictly observe and perform all the obligations
that are required to be performed by it as a "Lender" under the terms of the Loan Agreement and the other Loan
Documents; and (vii) agrees that it will keep confidential all information with respect to Borrowers furnished to
it by Borrowers or the Assignor to the extent provided in the Loan Agreement.
4. Assignor acknowledges and agrees that it will not sell or otherwise dispose of the Assigned
Interest or any portion thereof, or grant any participation therein, in a manner which, or take any action in
connection therewith which, would violate the terms of any of the Loan Documents.
5. This Agreement and all rights and obligations shall be interpreted in accordance with and
governed by the laws of the State of Georgia. If any provision hereof would be invalid under Applicable Law,
then such provision shall be deemed to be modified to the extent necessary to render it valid while most nearly
preserving its original intent; no provision hereof shall be affected by another provision's being held invalid.
6. Each notice or other communication hereunder shall be in writing, shall be sent by messenger,
by telecopy or facsimile transmission or by first-class mail, shall be deemed given when sent and shall be sent
as follows:
(a) If to Assignee, to the following address (or to such other address as Assignee may
designate from time to time):
==========================
--------------------------
(b) If to Assignor, to the following address (or to such other address as Assignor may
designate from time to time):
==========================
==========================
Payments hereunder shall be made by wire transfer of immediately available Dollars as follows:
If to Assignee, to the following account (or to such other account as Assignee may designate from time
to time):
--------------------------
ABA No.___________________
--------------------------
Account No._______________
Reference: ______________________
If to Assignor, to the following account (or to such other account as Assignor may designate from time
to time):
==========================
--------------------------
ABA No.___________________
For Account of:___________
Reference: _____________________
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be executed and
delivered by their respective duly authorized officers, as of the date first above written.
---------------------------------
("Assignor")
By: ____________________________
Title: __________________________
--------------------------------
("Assignee")
By: __________________________
Title: _________________________
SCHEDULE A TO ASSIGNMENT AND ACCEPTANCE
EXHIBIT H
FORM OF NOTICE
Reference is made to (i) the Amended and Restated Loan and Security Agreement dated June __, 2003 (as at
any time amended, the "Loan Agreement") among TROPICAL SPORTSWEAR INT'L CORPORATION, a Florida corporation
("Tropical"), TROPICAL SPORTSWEAR COMPANY, INC., a Delaware corporation ("TSCI"), SAVANE INTERNATIONAL CORP., a
Texas corporation ("Savane"), APPAREL NETWORK CORPORATION, a Florida corporation ("Apparel"), TSI BRANDS, INC., a
Delaware corporation ("TSI"), TSIL, INC., a Delaware corporation ("TSIL"), DUCK HEAD APPAREL COMPANY, LLC, a
Georgia limited liability company ("Duck Head"), and DELTA MERCHANDISING, INC., a South Carolina corporation
("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL, Duck Head and Delta collectively referred to hereinafter as
"Borrowers" and individually as a "Borrower"), FLEET CAPITAL CORPORATION in its capacity as collateral and
administrative agent ("Agent") for the financial institutions from time to time party to the Loan Agreement
("Lenders"), and such Lenders, and (ii) the Assignment and Acceptance dated as of ____________, 20__
(the "Assignment Agreement") between __________________ (the "Assignor") and ____________________ (the
"Assignee"). Except as otherwise defined herein, capitalized terms used herein which are defined in the Loan
Agreement are used herein with the respective meanings specified therein.
The Assignor hereby notifies Borrowers and Agent of Assignor's intent to assign to Assignee pursuant to
the Assignment Agreement a principal amount of (i) $________ of the outstanding Revolver Loans and participations
in LC Outstandings held by Assignor, (ii) $___________ of Assignor's Revolver Commitment (which amount includes
the Assignor's outstanding Revolver Loans being assigned to Assignee pursuant to clause (i) above), together with
an interest in the Loan Documents corresponding to the interest in the Loans and Commitment so assigned.
Pursuant to the Assignment Agreement, Assignee has expressly assumed all of Assignor's obligations under the Loan
Agreement to the extent of the Assigned Interest (as defined in the Assignment Agreement).
For purposes of the Loan Agreement, Agent shall deem Assignor's share of the Revolver Commitment to be
reduced by $_________, and Assignee's share of the Revolver Commitment to be increased by $_________.
The address of the Assignee to which notices, information and payments are to be sent under the terms of
the Loan Agreement is:
========================
========================
Assignee's LIBOR Lending Office address is as follows:
========================
========================
This Notice is being delivered to Borrowers and Agent pursuant to Section 13.3 of the Loan Agreement.
Please acknowledge your receipt of this Notice by executing and returning to Assignee and Assignor a copy of this
Notice.
IN WITNESS WHEREOF, the undersigned have caused the execution of this Notice, as of _________________,
20__.
--------------------------
("Assignor")
By:
Title:
--------------------------
("Assignee")
By:
Title:
ACKNOWLEDGED AND AGREED TO
AS OF THE DATE SET FORTH ABOVE:
*BORROWERS:
ATTEST: TROPICAL SPORTSWEAR INT'L
CORPORATION
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: TROPICAL SPORTSWEAR COMPANY, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: SAVANE INTERNATIONAL CORP.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: APPAREL NETWORK CORPORATION
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: TSI BRANDS, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: TSIL, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: DUCK HEAD APPAREL
MERCHANDISING, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: DELTA MERCHANDISING, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
* No signature required by any Borrower when an Event of Default exists.
FLEET CAPITAL CORPORATION,
as Agent
By:_____________________________
Title:__________________________
EXHIBIT I
LETTER OF CREDIT PROCUREMENT REQUEST
Fleet Capital Corporation, as Agent
Xxxxx 000
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: _______________
This Letter of Credit Procurement Request is delivered to you pursuant to the Amended and Restated Loan
and Security Agreement dated June __, 2003, among Tropical Sportswear Int'l Corporation, a Florida corporation
("Tropical"), Tropical Sportswear Company, Inc., a Delaware corporation ("TSCI"), Savane International Corp., a
Texas corporation ("Savane"), Apparel Network Corporation, a Florida corporation ("Apparel"), TSI Brands, Inc., a
Delaware corporation ("TSI"), TSIL, Inc., a Delaware corporation ("TSIL"), Duck Head Apparel Company, LLC, a
Georgia limited liability company ("Duck Head"), and Delta Merchandising, Inc., a South Carolina corporation
("Delta"; Tropical, TSCI, Savane, Apparel, TSI, TSIL, Duck Head and Delta collectively referred to hereinafter as
"Borrowers" and individually as a "Borrower"), various financial institutions as are, or may become, parties
thereto (collectively, the "Lenders"), Fleet Capital Corporation as collateral and administrative agent (in such
capacity, the "Agent") (as the same may be amended, supplemented, restated or otherwise modified from time to
time, the "Loan Agreement"). Unless otherwise defined herein, terms used herein have the meanings assigned to
them in the Loan Agreement.
Borrowers hereby request Fleet to provide an LC Support to induce Bank to issue a Letter of Credit, as
follows:
(1) Borrower's/Account Party's Name ______________________
(2) Amount of Letter of Credit: $_____________________
(3) Issuance Date: _____________________
(4) Beneficiary's Name: _____________________
(5) Beneficiary's Address: _____________________
---------------------
=====================
(6) Expiry Date: _____________________
(7) Draw Conditions: _____________________
---------------------
=====================
=====================
(8) Single draw or Multiple draw
(9) Purpose of Letter of Credit: ______________________
======================
======================
Attached hereto is the Bank's form of LC Application, completed with the details of the Letter of Credit
requested herein.
Each Borrower hereby certifies that each of the LC Conditions is now, and will on the date of issuance
of the Letter of Credit, be satisfied in all respects and that no Default or Event of Default exists. Each
Borrower hereby ratifies and reaffirms all of the Loan Documents and Obligations arising thereunder.
IN WITNESS WHEREOF, each Borrower has caused this Letter of Credit Procurement Request to be executed
and delivered by its duly authorized officer, this ___ day of _________________, 20__.
BORROWERS:
ATTEST: TROPICAL SPORTSWEAR INT'L
CORPORATION
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: TROPICAL SPORTSWEAR COMPANY, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: SAVANE INTERNATIONAL CORP.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: APPAREL NETWORK CORPORATION
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: TSI BRANDS, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: TSIL, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: DUCK HEAD APPAREL
MERCHANDISING, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
ATTEST: DELTA MERCHANDISING, INC.
_______________________________ By: ____________________________
Secretary Title: ________________________
[corporate seal]
SCHEDULE 7.1.1
BUSINESS LOCATIONS
1. Borrowers currently have the following business locations, and no others:
Chief Executive Office: Tropical Sportswear Int'l Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
Other Locations: Tropical Sportswear Int'l Corporation: 0000 X. Xxxxxx Xxxxxx, Xxxxx, XX
00000, 0000 X. Xxxxxx Xxxxxx, Xxxxx, XX 00000, 0000 Xxxxxxxx Xxxxxxxxx Xxxx.,
Xxxxx, XX 00000
Tropical Sportswear Company, Inc., TSIL, Inc. & TSI Brands, Inc. : 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
Duck Head Apparel Company, LLC and Delta Merchandising, Inc: 0000 X. Xxxxxx
Xxxxxx, Xxxxx, XX 00000
Savane International Corp.: 00 Xxxxxx Xxxx, Xxxxx Xxxxxx, XX 00000, 00000
Xxxxxxxx Xxxxx, Xx Xxxx, XX , 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
2. Borrowers maintain their books and records relating to Accounts and General Intangibles at:
Tropical Sportswear Int'l Corporation
0000 X. Xxxxxx Xxxxxx
Xxxxx, XX 00000
3. Borrowers have had no office, place of business or agent for process located in any county other than as
set forth above, except:
4. Each Subsidiary currently has the following business locations, and no others:
Chief Executive Office: Chief Executive Office: Farah Manufacturing (U.K.) Limited
Xxxxxxx Xxxx
Xxxxxx, Xxxxx, XX0 0XX
Chief Executive Office: Farah Australia Pty, Ltd.
00 Xxxxxx Xxxx
Xxxxxxxxxx X.X.X. 0000, Xxxxxxxxx
Chief Executive Office: Farah New Zealand Limited
Xxxx 0, 00 Xxxxxxxxxxx Xxxxx
Xx. Xxxxxx
Xxxxxxxx, Xxx Xxxxxxx
Other Locations:
5. Each Subsidiary maintains its books and records relating to Accounts and General Intangibles at:
Chief Executive Office
6. Each Subsidiary has had no office, place of business or agent for process located in any county other
than as set forth above, except:
7. The following bailees, warehouseman, similar parties and consignees hold inventory of a Borrower or one
of its Subsidiaries:
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
Name and Address of Party Nature of Relationship Amount of Inventory Owner of Inventory
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
Syle Kraft, 0000 Xxxxxx Xxxxx, Xxxxxxxxx service for goods $0.3 million Mexico/ Canada division of
Xxxxxxxxxxx, Xxxxxxx, Xxxxxx, X0XXX0 shipped from Mexico to Savane International Corp.
Canada for Wal-Mart Canada.
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
Accel, Camarones #14 Col. San Salvador, Warehouse service for goods $3.5 million Mexico/ Canada division of
Xochimnua, Bodeg, Mexico City, Mx , DF shipped into Mexico for Savane International Corp.
2780 Wal-Mart Mexico.
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
----------------------------------------- ----------------------------- ------------------------------ ------------------------------
SCHEDULE 7.1.2
INSURANCE
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
Name of Carrier Policy No. Scope of Insurance Amount of Insurance
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
Royal PSF001935 Fiduciary Responsibility $7.0 million
Insurance
Travelers 103360768 $3.0 million
Special
Chubb 81700702 $10.0 million
Crime
Gulf GA03028628 $3.0 million
Employment Practices Liability
AIG 000-00-00 $10.0 million
Directors & Officers
Directors & Officers $10.0 million
AIG-National Union Fire 000-00-00
Directors & Officers $10.0 million in excess of
Chubb-Federal Insurance Co. 8158-7812 $10.0 million
Hartford-Twin City Fire Ins NDA 0211924-02 $10.0 million in excess of
$20.0 million
Workers Comp
St Xxxx
$1.0 million
WVA0205057
Wind Buy Back
General Star
Global Property/General $1.5 million
Xx Xxxx XXX000000 Liability/Excess Liability
$125.0/$2.0/$25.0 million
CK06806913 Global Cargo Stock Through Put
Lloyds of London
$10.0/$25.0/$1.5 million
GB06800412 Blanket Accident Travel Ins
Standard Reliance Aircraft Liability-2 planes
$3.0/$1.0/$0.1 million
SR 225918
AIG
$100.0 million
GM 3388741-04
Directors & Officers Tail
Coverage - Duck Head
AIG, Chubb & Hartford
GM3388741-01
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
----------------------------------------- ----------------------------- -------------------------------- ----------------------------
SCHEDULE 8.1.1
JURISDICTIONS IN WHICH BORROWERS
AND EACH SUBSIDIARY
ARE AUTHORIZED TO DO BUSINESS
Name of Entity Jurisdictions
Tropical Sportswear Int'l Corporation Florida
Tropical Sportswear Company, Inc. Delaware
Savane International Corp. Alabama, Arizona, Colorado, Delaware, Florida, Georgia,
Illinois, Indiana, Louisiana, Michigan, Missouri,
Mississippi, New Mexico, Ohio, Pennsylvania, Tennessee,
Texas, Virginia, Nevada, New York
Apparel Network Corporation Florida
TSI Brands, Inc. Delaware
TSIL, Inc. Delaware
Duck Head Apparel Company, LLC Georgia
Delta Merchandising, In c. Alabama, Mississippi, Louisiana, Tennessee, Florida, South Carolina,
Georgia, Missouri, Texas, North Carolina, Maryland.
SCHEDULE 8.1.4
CAPITAL STRUCTURE
1. The classes and number of authorized shares of Borrowers and each Subsidiary and the record owner of
such shares are as follows:
Borrowers:
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Class of Stock Number of Shares Record Owners Number of Shares
Issued and Outstanding Authorized but Unissued
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Tropical Sportswear Int'l 11,040,452 Shares Publicly Held 48,959,548
Corporation
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Tropical Sportswear 100 Tropical Sportswear Int'l 0
Company, Inc. Corporation
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Savane International Corp. 100 Tropical Sportswear Int'l 900
Corporation
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Apparel Network Corporation 1,000 Tropical Sportswear Int'l 9,000
Corporation
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
TSI Brands, Inc. 1,000 Savane International Corp. 2,000
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
TSIL, Inc. 1,000 Savane International Corp 2,000
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Duck Head Apparel Company, 100 Tropical Sportswear Int'l 900
LLC Corporation
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Delta Merchandising, Inc. 100 Duck Head Apparel Company, LLC 900
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Subsidiaries:
---------------------------- -------------------------------- --------------------------------- -------------------------------------
Class of Stock Number of Shares Record Owners Number of Shares
Issued and Outstanding Authorized but Unissued
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
---------------------------- -------------------------------- --------------------------------- -------------------------------------
2. The number, nature and holder of all other outstanding Securities of Borrowers and each of their
Subsidiaries are as follows:
3. The correct name and jurisdiction of incorporation of each of the Subsidiaries of Borrowers and the
percentage of its issued and outstanding shares owned by a Borrower are as follows:
--------------------------------------------- ------------------------------------------- -------------------------------------------
Name Jurisdiction of Incorporation Percentage of Shares
Owned by Borrower
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
4. The name of each of each Borrower's corporate or joint venture Affiliates and the nature of the
affiliation are as follows:
SCHEDULE 8.1.5
CORPORATE NAMES
1. Each Borrower's correct corporate name, as registered with the Secretary of State of the State of its
state of incorporation, is:
Borrower State
Tropical Sportswear Int'l Corporation Florida
Tropical Sportswear Company, Inc. Delaware
Savane International Corp. Texas
Apparel Network Corporation Florida
TSI Brands, Inc. Delaware
TSIL, Inc. Delaware
Duck Head Apparel Company, LLC Georgia
Delta Merchandising, Inc. South Carolina
2. In the conduct of its business, Borrowers have used the following names:
3. Each Subsidiaries' correct corporate name, as registered with the Secretary of State of the State of its
incorporation, is:
4. In the conduct of its business, each Subsidiary has used the following names:
Chart of Corporate Structure Empresas Savane, S.A. de C.V.
Summary of Corporations Farah (Australia) Pty, Ltd.
Tropical Sportswear Int'l Corporation Farah (Far East) Limited
Tropical Sportswear Company, Inc. Farah (Fiji) Limited
Apparel Network Corp. Farah Manufacturing (U.K.) Limited
Duck Head Apparel Company, LLC Farah (New Zealand) Limited
Delta Merchandising, Inc. Farah Offshore Sourcing Company
Cargud, S.A. Servicios Magnificos, S.A. de C.V.
Savane International Corp. South Pacific Investments Limited
Corporacion Farah-Costa Rica, S.A. TSI Brands, Inc.
TSIL, Inc.
Touche Industrial, S.A. de C.V
SCHEDULE 8.1.13
TAX IDENTIFICATION NUMBERS OF BORROWERS AND SUBSIDIARIES
Borrowers' Tax ID Numbers are as follows:
Name of Borrower Tax ID Number
Tropical Sportswear Int'l Corporation 00-0000000
Tropical Sportswear Company, Inc. 00-0000000
Savane International Corp. 00-0000000
Apparel Network Corporation 00-0000000
TSI Brands, Inc. 00-0000000
TSIL, Inc. 00-0000000
Duck Head Apparel Company, LLC 00-0000000
Delta Merchandising, Inc. 00-0000000
SCHEDULE 8.1.15
PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES
1. Borrowers' and their Subsidiaries' patents:
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
Patent Owner Status in Federal Registration Registration
Patent Office Number Date
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
2. Borrowers' and their Subsidiaries' trademarks:
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
Trademark Owner Status in Federal Registration Registration
Trademark Office Number Date
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
3. Borrowers' and their Subsidiaries' copyrights:
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
Copyrights Owner Status in Federal Registration Registration
Copyright Office Number Date
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
None
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
---------------------------- ------------------------- -------------------------- ------------------------- -------------------------
4. Borrowers' and their subsidiaries' licenses (other than routine business licenses, authorizing them to
transact business in local jurisdictions):
---------------------------------- -------------------------------- -------------------------------- --------------------------------
Name of License Nature of License Licensor Term of License
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
SCHEDULE 8.1.18
CONTRACTS RESTRICTING BORROWERS' RIGHT TO INCUR DEBTS
Contracts that restrict the right of a Borrower to incur Debt:
---------------------------------- -------------------------------- -------------------------------- --------------------------------
Title of Contract Identity of Parties Nature of Restriction Term of Contract
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
Senior Subordinated Notes SunTrust Bank
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
Property Mortgage Bank of America
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
SCHEDULE 8.1.19
LITIGATION
1. Actions, suits, proceedings and investigations pending against Borrowers or any of their Subsidiaries:
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
Title of Action Nature of Action Complaining Parties Jurisdiction or Tribunal
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
Wage and Hour Case Claim of violations of Fair Xx. Xxxxxx Xxxxxxx El Paso, Texas
Labor Standards Act
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
EEOC Claim Notice of Charge of Xx. Xxxxxxx X. Xxxxxxx El Paso, Texas
Discrimination
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
TSI v Swiss Army Brands, Inc. Breach of Contract Tropical Sportswear Int'l Tampa, Florida
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
Union Grievance Wrongful Termination Xxxxxxx Xxxxxxxx El Paso, Texas
--------------------------------- -------------------------------- -------------------------------- ---------------------------------
2. The only threatened actions, suits, proceedings or investigations of which any Borrower or any
Subsidiary is aware are as follows:
SCHEDULE 8.1.21
CAPITALIZED AND OPERATING LEASES
Borrowers and their Subsidiaries have the following capitalized leases:
---------------------------------- -------------------------------- -------------------------------- --------------------------------
Lessee Lessor Term of Lease Property Covered
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
Borrowers and their Subsidiaries have the following operating leases:
---------------------------------- -------------------------------- -------------------------------- --------------------------------
Lessee Lessor Term of Lease Property Covered
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
---------------------------------- -------------------------------- -------------------------------- --------------------------------
SCHEDULE 8.1.22
PENSION PLANS
Borrowers and their Subsidiaries have the following Plans:
------------------------------------------------------------------- -----------------------------------------------------------------
Party Type of Plan
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
Borrower
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
[Subsidiaries]
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
SCHEDULE 8.1.24
COLLECTIVE BARGAINING AGREEMENTS; LABOR CONTROVERSIES
1. Borrowers and their Subsidiaries are parties to the following collective bargaining agreements:
--------------------------------------------- ------------------------------------------- -------------------------------------------
Type of Agreement Parties Term of Agreement
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
--------------------------------------------- ------------------------------------------- -------------------------------------------
2. Material grievances, disputes of controversies with employees are as follows:
------------------------------------------------------------------- -----------------------------------------------------------------
Parties Involved Nature of Grievance, Dispute or Controversy
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
3. Threatened strikes, work stoppages and asserted pending demands for collective bargaining are as follows:
------------------------------------------------------------------- -----------------------------------------------------------------
Parties Involved Nature of Matter
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
------------------------------------------------------------------- -----------------------------------------------------------------
SCHEDULE 9.2.5
PERMITTED LIENS
---------------------------------------------------------------- ----------------------------------------------------------
Secured Party Nature of Lien
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------
-----------------------------------------------------------------
Tropical Sportswear Int'L Corporation, Tropical Sportswear Company, Inc.,
Savane International Corp., Apparel Network Corporation, TSI Brands, Inc.,
TSIL, Inc., Duck Head Apparel Company, LLC, Delta Merchandising, Inc.,
as Borrowers
-----------------------------------------------------------------
=================================================================
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Dated: June ___, 2003
$95,000,000.00
=================================================================
-----------------------------------------------------------------
THE FINANCIAL INSTITUTIONS
PARTY HERETO FROM TIME TO TIME, as Lenders
and
FLEET CAPITAL CORPORATION, as Agent
--------------------------------------------------------------
TABLE OF CONTENTS
Page
Error! No table of contents entries found.
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Revolver Note
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Notice of Borrowing
Exhibit E Form of Compliance Certificate
Exhibit F Form of Opinion Contents
Exhibit G Form of Assignment and Acceptance
Exhibit H Form of Notice
Exhibit I Letter of Credit Procurement Request
Schedule 7.1.1 Borrowers' Business Locations
Schedule 7.1.2 Borrowers' Insurance
Schedule 8.1.1 Jurisdictions in which Borrowers and each Subsidiary is Authorized to do Business
Schedule 8.1.4 Capital Structure of Borrowers
Schedule 8.1.5 Corporate Names
Schedule 8.1.12 Surety Obligations
Schedule 8.1.13 Tax Identification Numbers of Borrowers and Subsidiaries
Schedule 8.1.15 Patents, Trademarks, Copyrights and Licenses
Schedule 8.1.18 Contracts Restricting Borrowers' Right to Incur Debts; Surety Obligations
Schedule 8.1.19 Litigation
Schedule 8.1.21 Capitalized and Operating Leases
Schedule 8.1.22 Pension Plans
Schedule 8.1.24 Labor Contracts
Schedule 9.2.5 Permitted Liens
Schedule 9.2.8 Restrictions on Upstream Payments
