EXHIBIT 10.2
AMENDMENT NO. 1, CONSENT AND WAIVER
AMENDMENT NO. 1, CONSENT AND WAIVER, dated as of November 12,
2003 (this "Amendment"), to the Credit Agreement, dated as of February 4, 2003
(as amended to the date hereof, the "Credit Agreement"), among WARNACO INC., a
Delaware corporation (the "Borrower"), THE WARNACO GROUP, INC. ("Group"), the
financial institutions from time to time party thereto as lenders (the
"Lenders"), the financial institutions from time to time party thereto as
issuers (the "Issuers"), CITICORP NORTH AMERICA, INC. ("CNAI"), as
administrative agent and collateral agent for the Lenders and the Issuers (in
such capacity, the "Administrative Agent"), JPMORGAN CHASE BANK, as syndication
agent for the Lenders and the Issuers and BANK OF AMERICA, NA, THE CIT
GROUP/COMMERCIAL SERVICES, INC., and CONGRESS FINANCIAL CORPORATION (CENTRAL),
each as a co-documentation agent for the Lenders and Issuers. Capitalized terms
used herein but not defined herein are used as defined in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, Group, the Lenders, the Issuers and the
Administrative Agent are party to the Credit Agreement and the undersigned
Lenders constitute the Requisite Lenders;
WHEREAS, the Borrower has requested that the Administrative
Agent and the Lenders constituting the Requisite Lenders agree to amend the
Credit Agreement to increase the aggregate Permitted Acquisition Consideration
available for Permitted Acquisitions;
WHEREAS, the Borrower has also requested that the
Administrative Agent and the Lenders constituting the Requisite Lenders (i)
consent to the sale by the Warnaco Entities of all right, title, and interest in
and to (A) the WHITE STAG trademarks which include all marks in either typed or
stylized form that include WHITE STAG, formatives of STAG (including STAG, STAG
SUITS, STAG STRETCH), the image of a leaping stag, and/or any foreign
translation of the foregoing, such as HIRSCH WEIS, which are used, registered,
and/or applied for in the United States and elsewhere throughout the world, as
set forth on Schedule A attached hereto (collectively, the "White Stag
Trademarks") and (B) assets relating to the business of designing, manufacturing
and merchandising women's apparel under the "A.B.S. by Allen Schwartz", "ABS
Sportswear", "Allen B." and "Allen by ABS" labels, including operating of retail
stores in New York and California under the "A.B.S." and "A.B.S. by Allen
Schwartz" marks (the "Allen B. Schwartz Business") and (ii) agree to waive
certain requirements of Sections 2.5 (Reduction and Termination of the
Commitments) and 8.4(b) (Sale of Assets) of the Credit Agreement to the extent
applicable to the sale of the White Stag Trademarks and Allen B. Schwartz
Business; and
WHEREAS, pursuant to Section 11.1 (Amendments, Waiver, Etc.)
of the Credit Agreement, the consent of the Requisite Lenders is required to
amend and waive the provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
covenants and obligations contained herein the parties hereto agree as follows:
Section 1. Consent and Waiver
(a) Effective as of the Amendment Effective Date and subject
to the satisfaction (or due waiver) of the conditions set forth in Section 3
(Conditions Precedent to the Effectiveness of this Amendment) hereof, the
Lenders constituting the Requisite Lenders, and the Administrative Agent hereby:
(i) agree that Group has given notice pursuant to
Section 6.4 of the Credit Agreement with respect to the Proposed Sales
(as defined below);
(ii) consent to the sale by the Warnaco Entities of
(A) the White Stag Trademarks to Wal-Mart Stores, Inc. for cash
consideration in an aggregate amount of not less than Thirty Two
Million ($32,000,000), of which not less than $5,000,000 is payable
upon execution of that certain Trademark Purchase and Design Services
Agreement by and among, Authentic Fitness Corporation, Authentic
Fitness Products, Inc., Warnaco Inc. and Wal-Mart Stores, Inc. and the
balance of which is payable on or before June 30, 2007 (the "White Stag
Sale") and (B) the Allen B. Schwartz Business to Harmony Collection,
LLC and Aquarius Rags, LLC for cash consideration in an aggregate
amount of not less than Fifteen Million Dollars ($15,000,000), which is
payable pursuant to that certain Asset Agreement by and among, A.B.S.
Closing Collection, Inc., Gregory Street, Inc., Warnaco Inc., Warnaco
U.S., Inc, Harmony Collection, LLC and Aquarius Rags, LLC (the "ABS
Sale," which, together with the White Stag Sale, the "Proposed Sales");
provided, however, that the terms of each Proposed Sale shall comply
with the requirements of clauses (b)(i), (b)(iii) and (b)(iv) of
Section 8.4 (Sale of Assets) of the Credit Agreement;
(iii) agree not to count the Net Cash Proceeds
arising from the Proposed Sales against the $20,000,000 basket set
forth in clause (b)(v) of Section 8.4 (Sale of Assets) of the Credit
Agreement;
(iv) agree that the receipt by Warnaco Entities of
Net Cash Proceeds arising from the Proposed Sales shall not result in a
reduction of the Commitments pursuant to Section 2.5 (Reduction and
Termination of the Commitments) of the Credit Agreement (whether or not
the Warnaco Entities choose to reinvest such Net Cash Proceeds in a
Permitted Acquisition or in replacement of fixed assets); and
(v) waive compliance with the provisions of Section
2.9 (Mandatory Prepayments) of the Credit Agreement with respect to Net
Cash Proceeds arising from the Proposed Sales; provided, however, that
such Net Cash Proceeds shall be applied to the Obligations as set forth
in Section 2.9(e) of the Credit Agreement.
(b) The Requisite Lenders hereby direct the Administrative
Agent to execute and deliver to the Warnaco Entities all releases or other
documents that the Administrative Agent deems reasonably necessary to effect the
Proposed Sales contemplated and consented to hereby, in each case at the request
and sole expense of the Loan Parties.
Section 2. Amendments to Credit Agreement
The Credit Agreement is, effective as of the Amendment
Effective Date and subject the satisfaction (or due waiver) of the conditions
set forth in Section 3 (Conditions Precedent to the Effectiveness of this
Amendment) hereof, hereby amended as follows:
(a) Insertion of the definition of "Cash on Hand" in Article I
(Definitions, Interpretation and Accounting Terms). The following definition of
"Cash on Hand" shall be inserted in the correct alphabetical order as follows:
2
"Cash on Hand" means an amount equal to the amount of cash and
Cash Equivalents on deposit in the Cash Collateral Accounts less the aggregate
amount of accounts payable and other unpaid expenses of the Warnaco Entities
which, in Group's reasonable judgment, are in excess of ordinary course accounts
payable and unpaid expenses as certified in a certificate of a Responsible
Officer of Group delivered to the Administrative Agent prior to the consummation
of a Proposed Acquisition or repurchase of Take Out Securities utilizing Cash on
Hand.
(b) Amendment to the definition of "Eligibility Reserves" in
Article I (Definitions, Interpretation and Accounting Terms). The definition of
Eligibility Reserve shall be amended and restated in its entirety as follows:
"Eligibility Reserve" means, effective as of three (3)
Business Days after the date of written notice of any determination thereof to
the Borrower by the Administrative Agent, such amounts as the Administrative
Agent, in its sole discretion exercised reasonably, may from time to time
establish against the gross amounts of Eligible Receivables, Eligible Finished
Inventory or Eligible Other Inventory, to reflect (a) risks or contingencies
arising after the Closing Date which may affect any one or class of such items
and which have not already been taken into account in the calculation of the
Borrowing Base, (b) Cash Management Obligations owing to the Agents that
constitute Secured Obligations as of the date of the most recent report
delivered to the Administrative Agent pursuant to Section 6.12(e) and (c) (i) at
any time that Available Credit is less than $50,000,000 or during an Event of
Default, upon the written request of any Lender that is (or whose Affiliate is)
party to that certain Hedging Contract, dated as of September 18, 2003, with the
Borrower, the aggregate obligations of the Borrower under such Hedging Contract
calculated on a mark to market basis or (ii) at any time that such Hedging
Contract has been terminated, the amount due and owing pursuant to such Hedging
Contract; provided that any reserve pursuant to this clause (c) shall not exceed
$5,000,000 at any time.
(c) Amendment to the definition of "Fixed Charge Coverage
Ratio" in Article I (Definitions, Interpretation and Accounting Terms). The
definition of Fixed Charge Coverage Ratio shall be amended and restated in its
entirety as follows:
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any period, the ratio of (a) EBITDAR of such Person for such period
minus (x) Capital Expenditures of such Person for such period and (y) cash
consideration paid during such period by such Person or any of its Subsidiaries
in respect of a Permitted Acquisition for such period (in each case net of any
such cash consideration which is a reinvestment of Net Cash Proceeds arising
from an Asset Sale), minus the total income tax liability actually payable by
such Person and its Subsidiaries in respect of such period minus the total
restructuring charges incurred by such Person and its Subsidiaries after the
Effective Date and paid during such period to (b) the Fixed Charges of such
Person for such period.
(d) Amendment to the definition of "Permitted Acquisition" in
Article I (Definitions, Interpretation and Accounting Terms). Clauses (d) and
(f) of the definition of "Permitted Acquisition" are hereby amended and restated
in their entirety to read as follows:
(d) the Dollar Equivalent of the aggregate Permitted
Acquisition Consideration for such Proposed Acquisition and all other
Permitted Acquisitions shall not exceed an amount equal to $15,000,000
(provided that the Stock and Stock Equivalents of Group forming part of
such consideration shall be excluded from the calculation of the
foregoing $15,000,000 limit); provided, however, if on the date of
consummation of any Proposed Acquisition, no Loans are outstanding,
then the aggregate Permitted Acquisition Consideration for such
Proposed Acquisition may be increased by an amount equal to the then
available Cash on Hand;
(f) the Borrower shall (i) have delivered to the
Administrative Agent, upon the request of the Administrative Agent,
promptly upon its becoming available, the acquisition agreement
3
(including all schedules), all financial information, financial
analysis, projections and similar documentation relating to the
proposed acquisition, and (ii) use its reasonable commercial efforts to
provide such additional documentation or other information relating to
such Proposed Acquisition that the Administrative Agent shall
reasonably request, including, without limitation, financial
projections on a Pro Forma Basis after giving effect to the Proposed
Acquisition.
(e) Amendments to Section 2.9 (Mandatory Prepayments). Section
2.9(e) shall be amended and restated in its entirety as follows:
(e) Except in the case where Section 2.13(h) shall be
applicable, all available funds in each Cash Collateral Account (other
than an amount equal to any proceeds arising from a Reinvestment Event
that are held in the Cash Collateral Account pending application of
such proceeds as specified in a Reinvestment Notice) shall be applied
on a daily basis: first to repay the outstanding principal amount of
the Swing Loans until such Swing Loans have been repaid in full;
second, to repay the outstanding principal amount of the Revolving
Loans until such Revolving Loans have been repaid in full; third to any
other Obligation then due and payable and then to cash collateralized
in the manner set forth in Section 9.3 all outstanding Letter of Credit
Obligations. The Administrative Agent agrees so to apply such funds and
the Borrower consents to such application. If at any time there is no
Event of Default that is continuing, and there are no Loans outstanding
and no other Obligations are then due and payable and all outstanding
Letter of Credit Obligations have been cash collateralized in the
manner set forth in Section 9.3 then the Administrative Agent shall
cause any remaining funds in the Cash Collateral Accounts to be paid at
the written direction of the Borrower. Notwithstanding the immediately
preceding sentence, at any time there is no Event of Default that is
continuing, there are no Loans outstanding and no other Obligations are
then due and payable (i) the Administrative Agent shall cause any funds
in the Cash Collateral Accounts to be paid at the written direction of
the Borrower if such funds are being used for a Permitted Acquisition
or to repurchase Take-Out Securities in accordance with Section 8.6(b)
and (ii) the Administrative Agent may, in its sole discretion, cause
any funds in the Cash Collateral Accounts to be paid at the written
direction of the Borrower for any other purpose.
(f) Amendments to Section 5.2 (Minimum Fixed Charge Coverage
Ratio). Section 5.2 (Minimum Fixed Charge Coverage Ratio) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
Minimum Fixed Charge Coverage Ratio. Group shall maintain a
Fixed Charge Coverage Ratio, as determined as of the last day of each
Fiscal Quarter set forth below, for the four Fiscal Quarters ending on
such day of at least the minimum ratio set forth below opposite such
Fiscal Quarter:
-----------------------------------------------------
MINIMUM FIXED
FISCAL QUARTER ENDING ON CHARGE COVERAGE
OR ABOUT RATIO
-----------------------------------------------------
December 31, 2003 2.00 to 1
-----------------------------------------------------
March 31, 2004 1.50 to 1
-----------------------------------------------------
June 30, 2004 1.50 to 1
-----------------------------------------------------
September 30, 2004 and each 1.75 to 1
Fiscal Quarter ending thereafter
-----------------------------------------------------
(g) Amendments to Section 5.3 (Capital Expenditures). Section
5.3 (Capital Expenditures) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
4
SECTION 5.3 CAPITAL EXPENDITURES. Group will not permit
Capital Expenditures by the Borrower and the other Subsidiaries of
Group to be made or incurred during each Fiscal Year set forth below to
exceed $32,000,000; provided, however, that (a) to the extent that
actual Capital Expenditures for any such Fiscal Year shall be less than
$32,000,000 (without giving effect to the carryover permitted by this
proviso), the amount of such shortfall (not to exceed 50% of the
available amount for such Fiscal Year) shall be, in addition, available
for Capital Expenditures in the next succeeding Fiscal Year, (b)
Capital Expenditures shall not include any amounts credited to, or
received by, any Warnaco Entity in connection with a substantially
contemporaneous trade in or Capital Expenditures constituting a
reinvestment of Net Cash Proceeds in replacement assets pursuant to
Section 2.9(b)(i) and (c) in the event of a sale of the Stock or the
assets by a Warnaco Entity constituting a business division of the
Warnaco Entities, (other than the Allen B. Schwartz Business) each
maximum Capital Expenditure level set forth above for the Fiscal Year
ending after such sale shall be reduced by an amount equal to the
Capital Expenditure allocable to such business division, as listed on
Schedule 5.3 (Capital Expenditure Adjustments) with respect to such
period (or, if such sale occurs during such period, such portion of
such period occurring after such sale), provided that the foregoing
formula and timing of the application of the reduction in maximum
Capital Expenditure levels may be adjusted in the reasonable discretion
of the Administrative Agent to take into consideration the terms of
such sale.
(h) Amendments to Article VI (Reporting Covenants)
Section 6.12 (Borrowing Base Determination) of the Credit
Agreement is hereby amended by inserting a new clause (f) at the end thereof to
read in its entirety as follows:
(f) In connection with the consummation of a Permitted
Acquisition, no Eligible Receivables, Eligible Finished Inventory and
Eligible Other Inventory of any Proposed Acquisition Target acquired in
connection with such Permitted Acquisition may be included in the
Borrowing Base to the extent provided for in this Agreement unless and
until the Administrative Agent shall have received the results of the
appraisals, field audits, test verifications and other evaluations of
such Collateral as it may reasonably request of the type specified in
clauses (b), (c) and (d) above, at the sole cost and expense of Group
and the Borrower.
(i) Amendments to Section 8.3 (Investments). Section 8.3
(Investments) of the Credit Agreement is hereby amended by (i) deleting the
"and" at the end of clause (h) thereof, (ii) renaming clause (i) thereof as
clause (j) (and renumbering accordingly each reference to such clause in any
Loan Document) and (iii) inserting a new clause (i) immediately after clause (h)
thereof to read in its entirety as follows:
(i) Investments by the Borrower or any Subsidiary Guarantor in
Permitted Acquisitions; and
(j) Amendments to Section 8.6(b) (Prepayment and Cancellation
of Indebtedness). Section 8.6(b) (Prepayment and Cancellation of Indebtedness)
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
(b) Neither Group nor the Borrower shall, nor shall they
permit any of their respective Subsidiaries to, prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Indebtedness; provided, however, that any
Warnaco Entity may: (i) prepay the Obligations in accordance with the
terms of this Agreement, (ii) make regularly scheduled or otherwise
required repayments or redemptions of Indebtedness (other than the
Second Lien Notes in respect of which payments may only be made subject
to clause (c) and clause (d) below), (iii) prepay any intercompany
Indebtedness payable to the Borrower or any of its Subsidiaries by the
Borrower or
5
any of its Subsidiaries, (iv) beginning on June 30, 2004 repurchase the
Take-Out Securities in the open market using then available Cash On
Hand in an aggregate amount not to exceed $10,000,000, and (v) renew,
extend, refinance and refund Indebtedness, as long as such renewal,
extension, refinancing or refunding is permitted under Section 8.1(g).
6
(k) Amendments to Article X (The Administrative Agent)
Clause (b) of Section 10.7 (Concerning the Collateral and
the Collateral Documents) of the Credit Agreement is hereby amended by (x)
deleting the "and" at the end of subclause (ii) thereof, (y) replacing the
period at the end of subclause (iii) thereof with the text "; and" and (z)
inserting new subclauses (iv) and (v) at the end thereof to read in their
entirety as follows:
(iv) that portion of any available funds held in a Cash
Collateral Account (including funds being held as cash collateral for
any Letter of Credit) to the extent provided or permitted by Section
2.9(e) (Mandatory Prepayments).
Section 3. Conditions Precedent to the Effectiveness of this Amendment
This Amendment shall become effective as of the date first
written above when, and only when, each of the following conditions precedent
shall have been satisfied (the "Amendment Effective Date") or duly waived by the
Administrative Agent:
(a) Certain Documents
The Administrative Agent shall have received each of the
following, each dated the Amendment Effective Date (unless otherwise agreed by
the Administrative Agent), in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender:
(i) this Amendment, duly executed by the Borrower, Group,
the Administrative Agent and Lenders constituting Requisite Lenders;
(ii) the Consent, Agreement and Affirmation of Guaranty in
form attached hereto as Exhibit A, duly executed by each of the
Subsidiary Guarantors; and
(iii) such additional documentation as the Administrative
Agent may reasonably require.
(b) Representations and Warranties
Each of the representations and warranties contained in
Article IV (Representations and Warranties) of the Credit Agreement, the other
Loan Documents or in any certificate, document or financial or other statement
furnished at any time under or in connection therewith are true and correct in
all material respects on and as of the date hereof and the Amendment Effective
Date, in each case as if made on and as of such date and except to the extent
that such representations and warranties specifically relate to a specific date,
in which case such representations and warranties shall be true and correct in
all material respects as of such specific date; provided, however, that
references therein to the "Credit Agreement" shall be deemed to refer to the
Credit Agreement as amended by this Amendment and after giving effect to the
consents and waivers set forth herein.
(c) No Default or Event of Default
After giving effect to this Amendment, no Default or Event of
Default (except for those that may have been duly waived) shall have occurred
and be continuing, either on the date hereof or on the Amendment Effective Date.
(d) Fees and Expenses Paid
7
The Borrower shall have paid all Obligations due, after giving
effect to this Amendment, on or before the later of the date hereof and the
Amendment Effective Date and all costs and expenses of the Administrative Agent
in connection with the preparation, reproduction, execution and delivery of this
Amendment and all other Loan Documents entered into in connection herewith
(including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent with respect thereto and all other Loan
Documents) and all other costs, expenses and fees due under any Loan Document.
Section 4. Representations and Warranties
On and as of the date hereof and as of the Amendment Effective
Date, after giving effect to this Amendment, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender as follows:
(a) this Amendment has been duly authorized, executed and
delivered by the Borrower and Group and constitutes a legal, valid and binding
obligation of the Borrower and Group, enforceable against the Borrower and Group
in accordance with its terms and the Credit Agreement as amended by this
Amendment and constitutes the legal, valid and binding obligation of the
Borrower and Group, enforceable against the Borrower and Group in accordance
with its terms;
(b) each of the representations and warranties contained in
Article IV (Representations and Warranties) of the Credit Agreement, the other
Loan Documents or in any certificate, document or financial or other statement
furnished at any time under or in connection therewith are true and correct in
all material respects on and as of the date hereof and the Amendment Effective
Date, in each case as if made on and as of such date and except to the extent
that such representations and warranties specifically relate to a specific date,
in which case such representations and warranties shall be true and correct in
all material respects as of such specific date; provided, however, that
references therein to the "Credit Agreement" shall be deemed to refer to the
Credit Agreement as amended hereby and after giving effect to the consents and
waivers set forth herein;
(c) no Default or Event of Default has occurred and is
continuing (except for those that are duly waived); and
(d) no litigation has been commenced against any Loan Party or
any of its Subsidiaries seeking to restraint or enjoin (whether temporarily,
preliminarily or permanently) the performance of any action by any Loan Party
required or contemplated by this Amendment, the Credit Agreement or any Loan
Document, in each case as amended hereby (if applicable).
Section 5. Reference to the Effect on the Loan Documents
(a) As of the Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein," or words
of like import, and each reference in the other Loan Documents to the Credit
Agreement (including, without limitation, by means of words like "thereunder,"
"thereof" and words of like import), shall mean and be a reference to the Credit
Agreement as amended hereby, and this Amendment and the Credit Agreement shall
be read together and construed as a single instrument. Each of the table of
contents and lists of Exhibits and Schedules of the Credit Agreement shall be
amended to reflect the changes made in this Amendment as of the Amendment
Effective Date.
(b) Except as expressly amended hereby or specifically waived
above, all of the terms and provisions of the Credit Agreement and all other
Loan Documents are and shall remain in full force and effect and are hereby
ratified and confirmed.
8
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders, Issuers, Arranger or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver or
amendment of any other provision of any of the Loan Documents or for any purpose
except as expressly set forth herein.
(d) This Amendment is a Loan Document.
Section 6. Execution in Counterparts
This Amendment may be executed in any number of counterparts
and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are attached to the same document. Delivery of an executed
counterpart by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment.
Section 7. Governing Law
This Amendment shall be governed by and construed in
accordance with the law of the State of New York.
Section 8. Section Titles
The section titles contained in this Amendment are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto, except when used to reference
a section.
Section 9. Notices
All communications and notices hereunder shall be given as
provided in the Credit Agreement or, as the case may be, the Guaranty.
Section 10. Severability
The fact that any term or provision of this Agreement is held
invalid, illegal or unenforceable as to any person in any situation in any
jurisdiction shall not affect the validity, enforceability or legality of the
remaining terms or provisions hereof or the validity, enforceability or legality
of such offending term or provision in any other situation or jurisdiction or as
applied to any person
Section 11. Successors
The terms of this Amendment shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
assigns.
Section 12. Waiver of Jury Trial
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY OTHER LOAN
DOCUMENT.
9
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
WARNACO INC.,
as Borrower
By: /s/ Jay A. Galluzzo
-------------------
Name: Jay A. Galluzzo
Title: Vice President, General Counsel & Secretary
THE WARNACO GROUP, INC.,
as Group
By: /s/ Jay A. Galluzzo
-------------------
Name: Jay A. Galluzzo
Title: Vice President, General Counsel & Secretary
CITICORP NORTH AMERICA INC.,
as Administrative Agent and a Lender
By: /s/ Brenda Cotsen
-----------------
Name: Brenda Cotsen
Title: Director - Asset Based Finance
JPMORGAN CHASE BANK,
as Syndication Agent and a Lender
By: /s/ [illegible]
---------------
Name: [illegible]
Title:
BANK OF AMERICA, NA,
as a Co-Documentation Agent, an Issuer and a Lender
By:___________________________
Name:
Title:
SIGNATURE PAGE TO AMENDMENT NO. 1, CONSENT AND WAIVER
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as a Co-Documentation Agent and a Lender
By: /s/Lisa Murakami
----------------
Name: Lisa Murakami
Title: Vice President
CONGRESS FINANCIAL CORPORATION (CENTRAL)
as a Co-Documentation Agent and a Lender
By: /s/ Anthony Vizgirda
--------------------
Name: Anthony Vizgirda
Title: First Vice President
THE BANK OF NOVA SCOTIA,
as an Issuer and a Lender
By: /s/ Todd S. Meller
------------------
Name: Todd S. Meller
Title: Managing Director
AMSOUTH BANK,
as a Lender
By:___________________________
Name:
Title:
FLEET RETAIL FINANCE INC.,
as a Lender
By: /s/ Sally A. Sheehan
--------------------
Name: Sally A. Sheehan
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 1, CONSENT AND WAIVER
WELLS FARGO FOOTHILL (formerly, Foothill Capital
Corporation),
as a Lender
By:___________________________
Name:
Title:
GMAC COMMERCIAL FINANCE LLC,
as a Lender
By: /s/ [illegible]
---------------
Name: [illegible]
Title: Vice President
MERRILL LYNCH CAPITAL, A DIVISION OF MERRILL
LYNCH BUSINESS FINANCIAL SERVICES INC.,
as a Lender
By: /s/ [illegible]
--------------
Name: [illegible]
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as a Lender
By: /s/ [illegible]
--------------
Name: [illegible]
Title: Asst. Vice President
LASALLE BUSINESS CREDIT, LLC,
as a Lender
By: /s/ Karoline A. Moxham
----------------------
Name: Karoline A. Moxham
Title: Asst. Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1, CONSENT AND WAIVER
ORIX FINANCIAL SERVICES, INC.,
as a Lender
By: /s/ [illegible]
---------------
Name: [illegible]
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By:___________________________
Name:
Title:
SIEMENS FINANCIAL SERVICES, INC.,
as a Lender
By:___________________________
Name:
Title:
WHITEHALL BUSINESS CREDIT CORPORATION,
as a Lender
By: /s/ Joseph A. Klapkowski
------------------------
Name: Joseph A. Klapkowski
Title: Duly Authorized Signatory
UPS CAPITAL CORPORATION,
as a Lender
By: /s/ Mike Tobin
--------------
Name: Mike Tobin
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 1, CONSENT AND WAIVER
EXHIBIT A
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY
Each of the undersigned Guarantors hereby consents to the
terms of the foregoing Amendment No. 1, Consent and Waiver in its capacity as a
Guarantor under the Credit Agreement and agrees that the terms thereof shall not
affect in any way its obligations and liabilities under the Loan Documents (as
amended and otherwise expressly modified thereby), all of which obligations and
liabilities shall remain in full force and effect and each of which is hereby
reaffirmed (as amended and otherwise expressly modified thereby).
184 BENTON STREET INC.
A.B.S. CLOTHING COLLECTION, INC.
ABBEVILLE MANUFACTURING COMPANY
AUTHENTIC FITNESS CORPORATION
AUTHENTIC FITNESS ON-LINE, INC.
AUTHENTIC FITNESS PRODUCTS INC.
AUTHENTIC FITNESS RETAIL INC.
CALVIN KLEIN JEANSWEAR COMPANY
CCC ACQUISITION CORP.
C.F. HATHAWAY COMPANY
CKJ HOLDINGS, INC.
DESIGNER HOLDINGS LTD.
GREGORY STREET, INC.
JEANSWEAR HOLDINGS, INC.
KAI JAY MANUFACTURING COMPANY
MYRTLE AVENUE, INC.
OUTLET HOLDINGS, INC.
OUTLET STORES, INC.
RIO SPORTSWEAR, INC.
UBERTECH PRODUCTS, INC.
WARNACO MEN'S SPORTSWEAR, INC.
WARNACO PUERTO RICO, INC.
WARNACO SOURCING INC.
WARNACO U.S. INC.
WARNER'S DE COSTA RICA INC.,
as Guarantors
By:
Name:
Title:
PENHALIGON'S BY REQUEST, INC.,
as Guarantor
By:
Name:
Title:
[SIGNATURE PAGE TO CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY]
THE WARNACO GROUP, INC.,
as Guarantor
By:
Name:
Title:
WARNACO INTERNATIONAL, LLC,
as Guarantor
By:
Name:
Title:
[SIGNATURE PAGE TO CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY]