Exhibit 10.2.4
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of September 30, 1999, is by and among Xxxxxx American Corp. (the "Borrower"),
Xxxxxx American Investment Corp. (the "Parent"), Xxxxxx American Group, Inc.
("Interco") and the certain subsidiaries of the Parent identified on the
signature pages hereto (together with the Parent and Interco, the "Guarantors"),
the lenders identified on the signature pages hereto (the "Lenders"), Bank of
America, N.A. (formerly known as NationsBank, N.A.), as agent for the Lenders
(in such capacity, the "Agent") and Gleacher NatWest Inc., as documentation
agent (the "Documentation Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Lenders, the Agent and the
Documentation Agent have entered into that certain Credit Agreement dated as of
May 18, 1998, as amended as of May 27, 1998, December 18, 1998 and March 19,
1999 (as so amended the "Existing Credit Agreement"); and
WHEREAS, the parties to the Existing Credit Agreement have agreed to
amend the Existing Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
PART 1
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 4 Effective Date" is defined in Subpart 3.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings provided in the Amended Credit Agreement.
PART 2
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 4
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part 2. Except as so amended, the Existing Credit Agreement and all
other Credit Documents shall continue in full force and effect.
SUBPART 2.1 Amendments to Section 1.1.
(a) The pricing grid contained in the definition of "Applicable
Percentage" appearing in Section 1.1 of the Existing Credit Agreement
is hereby amended and restated as follows:
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Applicable Percentage For
Revolving Loans and Tranche Applicable Percentage For
A Term Loan Tranche B Term Loan
-------------- ------------ -------------- ----------
Applicable Applicable Applicable
Senior Percentage Percentage For Percentage for
Pricing Leverage For Unused Eurodollar Base Rate Eurodollar Base Rate Standby Letter of Trade Letter of
Level Ratio Fee Loans Loans Loans Loans Credit Fee Credit Fee
---------- ----------- ------------ ------------- -------------- -------------- ------------ ----------------- --------------
I > 2.50 to
1.00 1/2% 3% 2% 3-1/2% 2-1/2% 3% 1-1/2%
---------- ----------- ------------ ------------- -------------- -------------- ------------ ----------------- --------------
II < 2.50 to
1.00 but >
2.00 to 1/2% 2-3/4% 1-3/4% 3-1/4% 2-1/4% 2-3/4% 1-3/8%
1.00
---------- ----------- ------------ ------------- -------------- -------------- ------------ ----------------- --------------
III < 2.00 to
1.00 but >
1.75 to 3/8% 2-1/2% 1-1/2% 3% 2% 2-1/2% 1-1/4%
1.00
---------- ----------- ------------ ------------- -------------- -------------- ------------ ----------------- --------------
IV < 1.75 to
1.00 3/8% 2-1/4% 1-1/4% 3% 2% 2-1/4% 1-1/8%
---------- ----------- ------------ ------------- -------------- -------------- ------------ ----------------- --------------
(b) The definition of "Consolidated EBITDA" appearing in Section 1.1 of
the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period, plus (ii) an amount which, in
the determination of Consolidated Net Income for such period, has been
deducted for (A) Consolidated Interest Expense, (B) total federal,
state, local and foreign income, value added and similar taxes, (C)
depreciation and amortization expense, (D) letter of credit fees, (E)
non-cash expenses resulting from the grant of, or the obligation to
grant, stock and stock options to employees of the Parent, the Borrower
or any of their respective Subsidiaries pursuant to a written plan or
agreement and (F) step-ups in inventory valuation as a result of
purchase accounting for Permitted Acquisitions, all as determined in
accordance with GAAP; provided, however, that Consolidated EBITDA for
any period shall be equal to the sum of (i) the amount determined
pursuant to the first clause of this definition for such period plus
(ii) the aggregate Consolidated EBITDA Adjustment for each fiscal
quarter occurring during such period.
(c) The definition of "Consolidated EBITDA Adjustment" appearing in
Section 1.1 of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Consolidated EBITDA Adjustment" means (i) for the fiscal
quarter ending December 31, 1998, the lesser of $2.3 million and actual
losses of Xxxxxx Designer Group, Inc. for such fiscal quarter
associated with the discontinuance of the Burberrys and Xxxx Xxxxx
Xxxxxxx licensed product lines, (ii) for any fiscal quarter ending on
or after December 31, 1998, the sum of (A) the amount, if any, of
reorganization charges taken during such fiscal quarter in respect of
(1) up to $550,000 of losses accrued by the Borrower and its
Subsidiaries on or prior to December 31, 1998 associated with (x) the
Canadian retail operations of the Borrower and its Subsidiaries and (y)
the Mexican and Guatemalan operations of the Borrower and its
Subsidiaries, (2) the costs and expenses of the Parent, the Borrower
and its Subsidiaries incurred in connection with the Recapitalization
and (3) up to $700,000 for non-cash facility closing and re-engineering
costs accrued by the Borrower and its Subsidiaries on or prior to
December 31, 1998, plus (B) the amount, if any, of charges taken during
such fiscal quarter in respect of (1) the establishment on or prior to
December 31, 1998 of a litigation reserve of up to $1.6 million and (2)
failed deal costs of up to $500,000 incurred by the Borrower and its
Subsidiaries on or prior to December 31, 1998, and (iii) for any fiscal
quarter ending on or after September 30, 1999 and not later than
December 31, 2000, the sum of (A) the amount of charges taken during
such quarter in respect of reorganization and restructuring charges
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(including, without limitation, facility closing, severance, pension
expense and re-engineering costs) incurred by the Borrower or any of
its Subsidiaries during the period from and including June 30, 1999 to
and including December 31, 2000, provided that the aggregate amount of
all such charges for all such periods shall not exceed $6,000,000 and
(B) the amount of charges taken during such fiscal quarter in respect
of the establishment on or prior to June 30, 2000 of a litigation
reserve of up to $725,000, in each case calculated in accordance with
GAAP.
(d) The definition of "Equity Issuance" appearing in Section 1.1 of the
Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Equity Issuance" means any issuance for cash by the Parent or
any Consolidated Party to any Person which is not a Credit Party of (a)
any of its Equity Interests, (b) any of its Equity Interests pursuant
to the exercise of options or warrants or (c) any of its Equity
Interests pursuant to the conversion of any debt securities to equity.
The term "Equity Issuance" shall include any Sponsor Equity Issuance,
but shall not include any Asset Disposition.
(e) The definition of "Funded Indebtedness" appearing in Section 1.1 of
the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Funded Indebtedness" means, with respect to any Person,
without duplication, the sum of (i) the amount equal to the sum of (a)
all Indebtedness of such Person other than Indebtedness of the types
referred to in clause (e), (f), (g), (i) and (m) of the definition of
"Indebtedness" set forth in this Section 1.1, plus (b) all Indebtedness
of another Person of the type referred to in clause (a) above secured
by (or for which the holder of such Funded Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or
acquired by such Person, whether or not the obligations secured thereby
have been assumed, plus (c) all Guaranty Obligations of such Person
with respect to Indebtedness of the type referred to in clause (a)
above of another Person plus (d) Indebtedness of the type referred to
in clause (a) above of any partnership or unincorporated joint venture
in which such Person is a general partner or a joint venturer to the
extent such Person is liable therefor, plus (ii) the portion not
applied to the prepayment of the Loans pursuant to Section 3.3(b)(v)(B)
of the aggregate Net Cash Proceeds of all Sponsor Equity Issuances
consummated on or after September 30, 1999 and at a time when the Total
Leverage Ratio as of the most recent fiscal quarter end with respect to
which the Agent has received the Required Financial Information is
greater than 6.5 to 1.0.
(f) The following new definitions are added to Section 1.1 of the Existing
Credit Agreement in appropriate alphabetical order:
"Investment and Deposit Agreement" means the investment and
deposit agreement dated as of September 30, 1999 between Vestar Capital
Partners III, L.P. and the Agent, as amended, modified, restated or
supplemented from time to time.
"Leverage Grace Period" means, with respect to any fiscal
quarter, the period beginning with the date that the Credit Parties are
required to deliver the Required Financial Information for such fiscal
quarter to the Lenders (or, if earlier, the date that such Required
Financial Information becomes available to the Borrower) and ending on
the later of (i) the date 15 Business Days thereafter or (ii) if a Sale
Moratorium (as hereinafter defined) is in effect as of the date
determined pursuant to clause (i) above, the last day of such Sale
Moratorium; provided, however, that (A) in no event shall the Leverage
Grace Period for any fiscal quarter extend beyond the date that is 180
days after the date that the Credit Parties are required to deliver the
Required Financial Information for such fiscal quarter to the Lenders
(or, if earlier, the date that such Required Financial Information
becomes available to the Borrower) and (B) the Credit Parties shall be
entitled to invoke a Sale Moratorium only one time. For purposes of
this definition, a "Sale Moratorium" shall be in effect for the period
beginning with the date that the Agent receives a written notice from
the Borrower requesting an extension of the Leverage Grace Period then
in effect, together with satisfactory evidence that the Credit Parties
3
have engaged a financial advisor reasonably acceptable to the Agent to
arrange a sale of all or substantially all of either the Shirt Group or
the Sock Group, and ending on the earliest of (a) the date 180 days
after the date of engagement of such financial advisor, (b) the date
(as determined by the Agent in its sole reasonable discretion) on which
the Credit Parties discontinue their efforts to consummate the sale for
which such financial advisor was engaged and (c) the date on which a
sale of all or substantially all of either the Shirt Group or the Sock
Group is consummated in accordance with the terms of Section 8.5.
"Sale Moratorium" shall have the meaning assigned to such term
in the definition of "Leverage Grace Period" set forth in this Section
1.1.
"Shirt Group" means any of the Equity Interests and Property
comprising the businesses of the Borrower and its Subsidiaries that are
engaged, domestically or internationally, in the design, manufacture
and marketing of dress shirts and sportswear.
"Sock Group" means any of the Equity Interests and Property
comprising the businesses of the Borrower and its Subsidiaries that are
engaged, domestically or internationally, in the design, manufacture
and marketing of branded and private label men's, women's and
children's socks.
"Sponsor Equity Issuance" means any Equity Issuance to the
Sponsor or its Affiliates or designated co-investors or any of the
officers, directors or employees of the Parent or a Consolidated Party.
"Sponsor Equity Issuance Prepayment Event" means the
occurrence, prior to termination of the Investment and Deposit
Agreement in accordance with the terms of Section 9.13 thereof, of a
Sponsor Equity Issuance at a time that any Events of Default with
respect to which a Leverage Grace Period has become effective are
continuing (whether or not such Leverage Grace Period has expired),
other than an issuance of Equity Interests (a) pursuant to the exercise
of options or warrants or (b) the proceeds of which are used by the
Parent to repurchase Equity Interests of the Parent in accordance with
the terms of Section 8.7(v).
SUBPART 2.2 Amendments to Section 3.3(b). Subsections (v) and (vi) of
Section 3.3(b) of the Existing Credit Agreement are hereby amended and restated
in their entireties to read as follows:
3.3 Prepayments.
**********
(b) Mandatory Prepayments.
**********
(v) Issuances of Equity.
(A) Non-Sponsor Equity Issuance. Immediately
upon the occurrence of any Equity Issuance other than
a Sponsor Equity Issuance, the Borrower shall prepay
the Loans in an aggregate amount equal to 100% of the
Net Cash Proceeds of such Equity Issuance (such
prepayment to be applied as set forth in clause (vi)
below).
(B) Sponsor Equity Issuance. Immediately
upon the occurrence of a Sponsor Equity Issuance
Prepayment Event, the Borrower shall prepay the Loans
in an aggregate amount equal to the lesser of (x)
100% of the Net Cash Proceeds of the related Sponsor
Equity Issuance and (y) as applicable, (I) the
portion of the Net Cash Proceeds of the related
Sponsor Equity Issuance necessary to effect a cure,
in the manner contemplated by Section 7.11(f), of
Events of Default resulting from non-compliance by
the Credit Parties with Section 7.11(c) and/or
Section 7.11(d) as of the end of each fiscal quarter
with respect to which a Leverage Grace Period is then
4
in effect or (II) the portion of the Net Cash
Proceeds of the related Sponsor Equity Issuance
necessary to effect compliance, in the manner
contemplated by Section 8.5(c)(ii)(B), with the
financial ratios set forth in Section 8.5(c)(ii)(A)
in connection with a sale of all or substantially all
of the Shirt Group at any time that a Sale Moratorium
is in effect (such prepayment, in any such case, to
be applied as set forth in clause (vi) below).
(vi) Application of Mandatory Prepayments. All
amounts required to be paid pursuant to this Section 3.3(b)
shall be applied as follows: (A) with respect to all amounts
prepaid pursuant to Section 3.3(b)(i), first to Swingline
Loans and then to the Revolving Loans and (after all Revolving
Loans have been repaid) to a cash collateral account in
respect of LOC Obligations, (B) with respect to all amounts
prepaid pursuant to Section 3.3(b)(ii), Section 3.3(b)(iv) or
Section 3.3(b)(v)(A), pro rata to the Tranche A Term Loan and
the Tranche B Term Loan (in each case ratably to the remaining
Principal Amortization Payments thereof) and (C) with respect
to all amounts prepaid pursuant to Section 3.3(b)(iii) or
Section 3.3(b)(v)(B), pro rata to (1) the Swingline Loans
(with a corresponding reduction in the Revolving Committed
Amount in an amount equal to all amounts applied pursuant to
this clause (1)), (2) the Revolving Loans and (after all
Revolving Loans have been repaid) to a cash collateral account
in respect of LOC Obligations (with a corresponding reduction
in the Revolving Committed Amount in an amount equal to all
amounts applied pursuant to this clause (2)), (3) the Tranche
A Term Loan (ratably to the remaining Principal Amortization
Payments thereof) and (4) the Tranche B Term Loan (ratably to
the remaining Principal Amortization Payments thereof);
provided, however, that in connection with a Sponsor Equity
Issuance consummated at a time that the Total Leverage Ratio
as of the most recent fiscal quarter end with respect to which
the Agent has received the Required Financial Information is
equal to or less than 6.5 to 1.0, all amounts required to be
prepaid pursuant to Section 3.3(b)(v)(B) shall be applied by
the Borrower in the manner provided in Section 3.3(a). One or
more holders of the Tranche B Term Loans may decline to accept
a mandatory prepayment under Section 3.3(b)(ii), Section
3.3(b)(iii), Section 3.3(b)(iv) or Section 3.3(b)(v) to the
extent there are sufficient Tranche A Term Loans outstanding
to be paid with such prepayment, in which case such declined
prepayments shall be allocated pro rata among the Tranche A
Term Loans and the Tranche B Term Loans held by Lenders
accepting such prepayments. Within the parameters of the
applications set forth above, prepayments of Revolving Loans,
the Tranche A Term Loan or the Tranche B Term Loan shall be
applied first to Base Rate Loans and then to Eurodollar Loans
in direct order of Interest Period maturities. All prepayments
under this Section 3.3(b) shall be subject to Section 3.12 and
be accompanied by interest on the principal amount prepaid
through the date of prepayment.
SUBPART 2.3 Amendments to Section 7.11. Section 7.11 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
7.11 Financial Covenants.
The Credit Parties shall cause:
(a) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of
the last day of each fiscal quarter of the Consolidated Parties, to be
at least:
(i) for the period from September 30, 1999 to
and including September 29, 2000, 0.60 to
1.00;
(ii) for the period from September 30, 2000 to
and including December 30, 2000, 0.80 to
1.00;
5
(iii) at all times thereafter, 1.00 to 1.00.
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as of the last
day of each fiscal quarter of the Consolidated Parties, to be greater
than or equal to:
(i) for the period from September 30, 1999 to
and including March 30, 2000, 1.10 to 1.00;
(ii) for the period from March 31, 2000 to and
including June 29, 2000, 1.00 to 1.00;
(iii) for the period from June 30, 2000 to and
including September 29, 2000, 1.05 to 1.00;
(iv) for the period from September 30, 2000 to
and including December 30, 2000, 1.30 to
1.00;
(v) for the period from December 31, 2000 to
and including December 30, 2001, 1.50 to
1.00;
(vi) for the period from December 31, 2001 to and
including December 30, 2002, 1.85 to 1.0;
(vii) for the period from December 31, 2002 to and
including December 30, 2003, 2.00 to 1.0;
(viii) for the period from December 31, 2003 to and
including December 30, 2004, 2.25 to
1.0; and
(ix) at all times thereafter, 2.50 to 1.00.
(c) Senior Leverage Ratio. The Senior Leverage Ratio, as of the last day
of each fiscal quarter of the Consolidated Parties, to be less than or
equal to:
(i) for the period from September 30, 1999 to
and including June 29, 2000, 5.75 to 1.00;
(ii) for the period from June 30, 2000 to and
including September 29, 2000, 5.50 to 1.00;
(iii) for the period from September 30, 2000 to
and including December 30, 2000, 4.50 to
1.00;
(iv) for the period from December 31, 2000 to and
including December 30, 2001, 3.25 to 1.00;
(v) for the period from December 31, 2001 to and
including December 30, 2002, 3.00 to 1.00;
(vi) for the period from December 31, 2002 to and
including December 30, 2003, 2.75 to
1.00; and
(vii) at all times thereafter, 2.50 to 1.00.
(d) Total Leverage Ratio. The Total Leverage Ratio, as of the last day of
each fiscal quarter of the Consolidated Parties, to be less than or
equal to:
(i) for the period from September 30, 1999 to
6
and including March 30, 2000, 10.00 to 1.00;
(ii) for the period from March 31, 2000 to and
including June 29, 2000, 10.50 to 1.00;
(iii) for the period from June 30, 2000 to and
including September 29, 2000, 10.00 to 1.00;
(iv) for the period from September 30, 2000 to
and including December 30, 2000, 8.00 to
1.00;
(v) for the period from December 31, 2000 to and
including December 30, 2001, 6.00 to 1.00;
(vi) for the period from December 31, 2001 to and
including December 30, 2002, 5.50 to 1.00;
(vii) for the period from December 31, 2002 to and
including December 30, 2003, 4.75 to
1.00; and
(viii) at all times thereafter, 4.00 to 1.00.
(e) Minimum Sock Group EBITDA. The portion of Consolidated EBITDA
attributable to the Sock Group, as of the last day of each fiscal
quarter of the Consolidated Parties for the twelve month period ending
on such date, to be greater than or equal to:
(i) for the period from September 30, 1999 to
and including December 31, 2000,
$32,000,000; and
(ii) at all times thereafter, $33,000,000.
(f) Certain Cure Rights. Notwithstanding any provision to the contrary
contained in this Credit Agreement (including, without limitation,
Section 9.1(c)(i)) or in any other Credit Document, until the date
that the Investment and Deposit Agreement is terminated in accordance
with the terms of Section 9.13 thereof, (i) the Borrower shall have
the right to cure any Event of Default resulting from non-compliance
by the Credit Parties with Section 7.11(c) or Section 7.11(d) as of
the end of any fiscal quarter by prepaying the Loans during the
Leverage Grace Period for such fiscal quarter in an amount (in an
integral multiple of $100,000) that would have been sufficient to
enable the Credit Parties to comply with Section 7.11(c) and Section
7.11(d) as of the last day of such fiscal quarter if such prepayment
had been made on such date, with either (A) the Net Cash Proceeds of a
Sponsor Equity Issuance in accordance with Section 3.3(b)(v)(B) or (B)
the Net Cash Proceeds of a sale of all or any portion of the Shirt
Group in accordance with Section 3.3(b)(iii) and (ii) upon
consummation of a sale of all or substantially all of the Shirt Group
while a Sale Moratorium is in effect and prepayment of the Loans in an
amount sufficient to enable the Credit Parties to be in compliance
with the financial ratios set forth in Section 8.5(c)(ii)(A) in the
manner contemplated by Section 8.5(c)(ii)(B), all Events of Defaults
with respect to which a Leverage Grace Period is then in effect
automatically shall be deemed to have been cured. Solely for purposes
of Section 7.11(c) and Section 7.11(d), (i) the amount of Funded
Indebtedness of the Consolidated Parties during any Leverage Grace
Period shall be calculated by giving pro forma effect to the
prepayment of the Loans that would be required to enable the Credit
Parties to comply with Section 7.11(c) and Section 7.11(d) as of the
related fiscal quarter-end (but only to the extent that such
prepayment actually has not been made) and (ii) the amount of the
prepayment required to effect a cure of any Event of Default occurring
as of the end of any fiscal quarter shall be determined without regard
to the Senior Leverage Ratio or the Total Leverage Ratio as of the end
of any subsequent fiscal quarter.
SUBPART 2.4 Amendments to Section 8.5. Section 8.5 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as follows:
8.5 Asset Dispositions.
The Credit Parties will not permit the Parent or any
Consolidated Party to make any Asset Disposition (including, without
limitation, any Sale and Leaseback Transaction) other than Excluded
Asset Dispositions unless (a) the consideration paid in connection
therewith is at least 75% cash or Cash Equivalents, (b) if such
transaction is a Sale and Leaseback Transaction, such transaction is
permitted by the terms of Section 8.13, (c) the Borrower shall have
delivered to the Agent a certificate of an Executive Officer of the
Borrower demonstrating (i) that upon giving effect to such transaction
and the application of the Net Cash Proceeds thereof no Default or
Event of Default would exist hereunder and (ii) if such Asset
7
Disposition involves a sale of all or substantially all of the Shirt
Group while a Sale Moratorium is in effect, that upon giving effect on
a Pro Forma Basis to such transaction either (A) the Fixed Charge
Coverage Ratio would be at least 1.0 to 1.0, the Interest Coverage
Ratio would be at least 1.5 to 1.0, the Senior Leverage Ratio would not
exceed 3.25 to 1.0 and the Total Leverage Ratio would not exceed 5.5 to
1.0 or (B) concurrently with the consummation of such Asset
Disposition, the Borrower will be able to prepay the Loans in
accordance with Section 3.3(b)(iii) and/or Section 3.3(b)(v)(B) in an
amount sufficient to enable the Credit Parties to be in compliance with
the financial ratios set forth in the immediately preceding clause (A),
and (d) no later than 15 days prior to such Asset Disposition, the
Agent and the Lenders shall have received a certificate of an officer
of the Borrower specifying the anticipated or actual date of such Asset
Disposition, briefly describing the assets to be sold or otherwise
disposed of and setting forth the net book value of such assets, the
aggregate consideration and the Net Cash Proceeds to be received for
such assets in connection with such Asset Disposition, and thereafter
the Credit Parties shall, immediately following the consummation of
such Asset Disposition apply (or cause to be applied) an amount equal
to the Net Cash Proceeds of such Asset Disposition to prepay the Loans
(and cash collateralize LOC Obligations) in accordance with the terms
of Section 3.3(b)(iii). Notwithstanding any provision of this Credit
Agreement to the contrary, no Asset Disposition involving any portion
of the Sock Group shall be permitted unless simultaneously all of the
Credit Party Obligations are repaid and this Credit Agreement is
terminated in accordance with the terms of Section 11.13(b).
Upon a sale of Property or the sale of Equity Interests of a
Consolidated Party permitted by this Section 8.5, the Agent shall (to
the extent applicable and provided that such Person is also released
from any and all of its obligations, if any, in respect of all other
Indebtedness of the Credit Parties) deliver to the Credit Parties, upon
the Credit Parties' request and at the Credit Parties' expense, such
documentation as is reasonably necessary to evidence the release of the
Agent's security interest, if any, in such Property or Equity
Interests, including, without limitation, amendments or terminations of
UCC financing statements, if any, the return of stock certificates, if
any, and the release of such Consolidated Party from all of its
obligations, if any, under the Credit Documents.
SUBPART 2.5 Amendments to Section 9.1. Subsection (l) of Section 9.1 of the
Existing Credit Agreement is hereby amended and restated in its entirety to read
as follows and the following new subsection (m) is added to Section 9.1
immediately succeeding such subsection (l):
9.1 Events of Default.
An Event of Default shall exist upon the occurrence and continuation of any
of the following specified events (each an "Event of Default"):
**********
(l) Ownership. There shall occur a Change of Control; or
(m) Investment and Deposit Agreement. There shall occur
and be continuing any "Event of Default" under, and
as defined in, the Investment and Deposit Agreement.
SUBPART 2.6 Deletion of Schedules 1.1A and 1.1A-1. Schedules 1.1A and
1.1A-1 to the Existing Credit Agreement are hereby deleted in their entireties.
PART 3
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1 Amendment No. 4 Effective Date. This Amendment shall be and
become effective as of the date hereof (the "Amendment No. 4 Effective Date")
when all of the conditions set forth in this Part 3 shall have been satisfied,
and thereafter this Amendment shall be known, and may be referred to, as
"Amendment No. 4."
SUBPART 3.1.1 Execution of Counterparts of Amendment. The Agent shall have
received counterparts of this Amendment, which collectively shall have been duly
executed on behalf of each of the Borrower, the Guarantors and the Required
Lenders.
SUBPART 3.1.2 Vestar Documents, Legal Opinion, etc. The Investment and
Deposit Agreement shall have become effective in accordance with the provisions
8
of Section 3.1 thereof and the Agent shall have received such other documents,
agreements or information as is reasonably requested by the Agent in connection
with the execution of the Investment and Deposit Agreement, including without
limitation, a legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx in form and substance
reasonably satisfactory to the Agent.
SUBPART 3.1.3 Other Items. The Agent shall have received such other
documents, agreements or information which may be reasonably requested by the
Agent.
SUBPART 3.1.4 Payment of Amendment Fees. The Agent shall have received, for
the account of each Lender that has delivered an executed counterpart of this
Amendment to the Agent on or before 00 Xxxx (Xxxxxxxxx, Xxxxx Xxxxxxxx time)
October 26, 1999, an amendment fee equal to 0.25% of the Commitment of each such
Lender under the Existing Credit Agreement.
PART 4
MISCELLANEOUS
SUBPART 4.1 Representations and Warranties. Borrower hereby represents and
warrants to the Agent and the Lenders that, after giving effect to this
Amendment, (a) no Default or Event of Default exists under the Credit Agreement
or any of the other Credit Documents and (b) the representations and warranties
set forth in Section 6 of the Existing Credit Agreement are, subject to the
limitations set forth therein, true and correct in all material respects as of
the date hereof (except for those which expressly relate to an earlier date).
SUBPART 4.2 Reaffirmation of Credit Party Obligations. Each Credit Party
hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it
is bound by all terms of the Credit Agreement applicable to it and (b) that it
is responsible for the observance and full performance of its respective Credit
Party Obligations.
SUBPART 4.3 Cross-References. References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.4 Instrument Pursuant to Existing Credit Agreement. This
Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Existing Credit Agreement.
SUBPART 4.5 References in Other Credit Documents. At such time as this
Amendment No. 4 shall become effective pursuant to the terms of Subpart 3.1, all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Credit Agreement as amended by this Amendment No. 4.
SUBPART 4.6 Counterparts/Telecopy. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. Delivery of executed counterparts of this Amendment by telecopy shall
be effective as an original and shall constitute a representation that an
original shall be delivered.
SUBPART 4.7 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SUBPART 4.8 Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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IN WITNESS WHEREOF the Borrower, the Guarantors and the Required
Lenders have caused this Amendment to be duly executed on the date first above
written.
CREDIT PARTIES: XXXXXX AMERICAN Corp.
--------------
Xxxxxx American Investment Corp.
Xxxxxx American Group, Inc.
CONSUMER DIRECT CORPORATION
ARROW FACTORY STORES, INC.
GAKM RESOURCES CORPORATION
XXXXXX XXXXXXX RESOURCES CORPORATION
XXXXXX PEABODY HOLDING CORP.
XXXXXX, XXXXXXX & CO., INC.
BIDERTEX SERVICES INC.
GREAT AMERICAN KNITTING XXXXX, INC.
XXXXXX DESIGNER GROUP, INC.
BIDERMANN TAILORED CLOTHING, INC.
By:
Name:
Title:
[Signatures Continued]
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LENDERS: BANK OF AMERICA, N.A.
(formerly known as NationsBank, N. A.)
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
Name:
Title:
FLEET BANK, N.A.
By:
Name:
Title:
BANKBOSTON, N.A.
By:
Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
(successor in interest to Sanwa Business Credit
Corporation)
By:
Name:
Title:
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
Name:
Title:
By:
Name:
Title:
FIRST SOURCE FINANCIAL LLP,
By: First Source Financial Inc., its manager
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
Name:
Title:
SUMMIT BANK
By:
Name:
Title:
HSBC BANK USA
By:
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.
By: Xxxxxx Xxxxxx & Co., L.P. as Investment
Advisor
By:
Name:
Title:
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NEW YORK LIFE INSURANCE COMPANY
By:
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:
Name:
Title:
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
GREAT POINT CLO 1999-1 LTD.
By: Sankaty Advisors, Inc., as
Collateral Managers
By:
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By:
Name:
Title:
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