EXHIBIT 10.1
CONSENT AGREEMENT
This CONSENT AGREEMENT (this "Consent"), made as of May 1, 2006, among
Oxford Industries, Inc., a Georgia corporation ("Parent"), Oxford of South
Carolina, Inc., a South Carolina corporation, and Tommy Bahama Group, Inc.
(formerly known as Viewpoint International, Inc., a Delaware corporation, as
Borrowers, the Domestic Subsidiaries of Borrowers party to the Credit Agreement
(as defined below) as Guarantors, the Lenders (as defined in the Credit
Agreement) party hereto, and SunTrust Bank, as the Administrative Agent.
W I T N E S S E T H:
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WHEREAS, Borrowers, the Guarantors, the Lenders, the financial
institutions party thereto as Issuing Banks and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement, dated as of July
28, 2004, as modified and amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of January 10, 2005 and as further modified
and amended by that certain Second Amendment to Amended and Restated Credit
Agreement dated as of September 21, 2005 (as further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the Parent intends to sell its womenswear division (the
"Womenswear Division") to The Millwork Trading Co, Ltd., d/b/a Li & Fung USA or
one of its affiliates (the "Womenswear Division Disposition");
WHEREAS, the Borrowers have requested that the Lenders consent to the
Womenswear Division Disposition and the Lenders have agreed to consent to such
disposition pursuant to the terms and subject to the conditions set forth
herein;
NOW THEREFORE, in consideration of the premises, the terms and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree that
all capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, and
further agree as follows:
1. Consent.
(a) The Lenders hereby consent to the Womenswear Division
Disposition and waive compliance with Section 8.7 of the Credit Agreement,
Liquidation; Change in Ownership, Name or Year; Disposition or Acquisition of
Assets; Etc., only to the extent necessary to avoid a Default as a result of the
Womenswear Division Disposition; provided, however, that the Womenswear Division
Disposition shall be permitted only so long as: (i) the terms and conditions of
the Womenswear Division Disposition (which may include the lease or sale of one
or more parcels of real property currently relating exclusively to the
womenswear division) are on substantially the terms set forth in the letter of
intent attached hereto as Exhibit A (the "Letter of Intent"), except that the
Womenswear Division Disposition shall be effected by a transfer to The Millwork
Trading Co, Ltd., d/b/a Li & Fung USA or one of its affiliates of the assets of
the Parent and certain of its Subsidiaries related to its womenswear division
rather than by a sale of
the capital stock of Oxford of South Carolina, Inc. as contemplated by the first
paragraph of the Letter of Intent; (ii) the documents affecting such sale and
the release documents permitting the release of liens in connection with such
sale are in form and substance acceptable to the Administrative Agent; (iii) no
Default or Event of Default exists at the time of such sale or otherwise would
be caused by such sale; (iv) such sale is consummated on or before June 5, 2006;
and (v) the Net Cash Proceeds of such sale are immediately remitted to the
Administrative Agent to be applied to the temporary repayment of the Obligations
in accordance with Section 2.6(b)(ii) of the Credit Agreement and, subject to
the conditions set forth in the Credit Agreement for borrowing, such amount may
be reborrowed by the applicable Borrower Party solely to reinvest in other
assets of such Borrower Party in a manner permitted in Section 1012(b) of the
Indenture and on the last day of the Reinvestment Period (as defined below) the
Revolving Loan Commitments shall be reduced permanently by the amount of such
Net Cash Proceeds that has not been reinvested as provided in clauses (ii)
through (vi) of Section 1012(b) of the Indenture and that otherwise would
constitute Excess Proceeds (as such term is defined in the Indenture) in excess
of $15 million under Section 1012(c) of the Indenture; provided, that (A) such
reinvestment must be made on or before the date 355 days following the closing
date of the Womenswear Division Disposition (or such later date as shall be
approved by the Majority Lenders in writing) (the "Reinvestment Period") and (B)
no Event of Default shall have occurred and be continuing at the time of such
reinvestment or after giving effect thereto. The Lenders hereby grant authority
to the Administrative Agent to release all of its Liens on all property that is
the subject of the Womenswear Division Disposition upon consummation of the
Womenswear Division Disposition in accordance with this Consent. The
Administrative Agent shall be entitled to rely on a certificate from the
Borrowers confirming that the Womenswear Division Disposition has been
consummated in accordance with this Consent. Each of the Lenders and the
Administrative Agent further agree that the escrow deposit described in Section
2(c) of the Letter of Intent, the right of first refusal to license brands
described in Section 3(c) of the Letter of Intent, and the license described in
Section 5(a) of the Letter of Intent are permitted under the Credit Agreement on
the terms described in such Sections of the Letter of Intent.
(b) The Lenders hereby consent to the formation of a direct Subsidiary
of the Parent (the "Womenswear Division Subsidiary"), the sole purpose of which
shall be to own a lockbox account for the collection of accounts related to its
womenswear division, and the shares of which may be transferred to The Millwork
Trading Co, Ltd., d/b/a Li & Fung USA or one of its affiliates in connection
with the Womenswear Division Disposition (the "Womenswear Division Lockbox") and
waive (i) compliance with Section 6.21 of the Credit Agreement, Formation of
Subsidiaries, only to the extent necessary to avoid a Default as a result of
forming the Womenswear Division Subsidiary without causing the Womenswear
Division Subsidiary to provide to the Administrative Agent, for the benefit of
the Lender Group, the supplements, pledge agreements and other documents
required pursuant to Section 6.21 of the Credit Agreement and (ii) compliance
with Section 6.15 of the Credit Agreement, Account Control Agreements;
Securities Account Control Agreements, only to the extent necessary to avoid a
Default as a result of the opening of the Womenswear Division Lockbox without
entering into an Account Control Agreement; provided, however, that, if the
Womenswear Division Disposition is not consummated on or before June 5, 2006,
the Parent shall cause the Womenswear Division Subsidiary to provide to the
Administrative Agent, for the benefit of the Lender Group, the supplements,
pledge agreements and other documents required pursuant to Section 6.21 of the
Credit Agreement and an Account Control Agreement with respect to the Womenswear
Division Lockbox required pursuant to Section 6.15 of the Credit Agreement, on
or before June 5, 2006.
2. No Other Consent or Waiver. The execution, delivery and
effectiveness of this Consent shall not, except as expressly provided above,
operate as an amendment to or a waiver of any right, power or remedy of the
Administrative Agent, the Lenders or Issuing Banks under the Credit Agreement or
any of the other Loan Documents, nor constitute an amendment to or a waiver of
any provision of the Credit Agreement or any of the other Loan Documents. Except
for the consent and amendment expressly set forth above, the text of the Credit
Agreement and all other Loan Documents shall remain unchanged and in full force
and effect and each Borrower and each Guarantor hereby ratifies and confirms its
obligations thereunder. This Consent shall not constitute a modification of the
Credit Agreement or a course of dealing with the Administrative Agent, the
Lenders or the Issuing Banks at variance with the Credit Agreement such as to
require further notice by the Administrative Agent, the Lenders or the Issuing
Banks to require strict compliance with the terms of the Credit Agreement and
the other Loan Documents in the future. Nothing in this Consent is intended, or
shall be construed, to constitute a novation or an accord and satisfaction of
any of the Obligations or to modify, affect or impair the perfection or
continuity of the Administrative Agent's or the Lenders' security interests in,
security titles to, or other Liens on, any Collateral for the Obligations.
3. Conditions on Effectiveness. This Consent shall be come effective as
of the date hereof when, and only when, the Administrative Agent, on behalf of
the Issuing Banks and the Lenders, shall have received, in form and substance
satisfactory to it:
(a) counterparts of this Consent duly executed by Borrowers
and the Majority Lenders; and
(b) such other information, documents, instruments or
approvals as the Administrative Agent may require.
4. Representations and Warranties of Borrower Parties. Each Borrower
Party represents and warrants as follows:
(a) Such Borrower Party is a corporation or limited liability
company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or organization;
(b) The execution, delivery and performance by such Borrower
Party of this Consent and the Loan Documents, as amended hereby, are within such
Borrower Party's legal powers, have been duly authorized by all necessary
company action and do not contravene (i) such Borrower Party's organizational
documents, or (ii) laws or contractual restrictions binding on or affecting such
Borrower Party;
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body, is
required by the due execution, delivery
and performance by such Borrower Party of this Consent or any of the Loan
Documents, as amended hereby, to which such Borrower Party is or will be a
party;
(d) This Consent and each of the other Loan Documents, as
amended hereby, to which such Borrower Party is a party constitute legal, valid
and binding obligations of such Borrower Party, enforceable against such
Borrower Party in accordance with their respective terms; and
(e) No Default or Event of Default exists.
5. Reference to and Effect on the Loan Documents. Upon the
effectiveness of this Consent, on and after the date hereof each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to the "Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
6. Costs, Expenses and Taxes. Borrowers agree to pay on demand all
reasonable out-of-pocket expenses of the Administrative Agent in connection with
the preparation, negotiation, execution and delivery of this Consent, including,
but not limited to, the reasonable fees and disbursements of counsel for the
Administrative Agent.
7. Governing Law. This Consent shall be construed in accordance with
and governed by the laws of the State of New York, without regard to the
conflict of laws principles thereof, except to the extent otherwise provided in
the Loan Documents.
8. Loan Document. This Consent shall be deemed to be a Loan Document
for all purposes.
9. Counterparts. This Consent may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
In proving this Consent in any judicial proceeding, it shall not be necessary to
produce or account for more than one such counterpart signed by the party
against whom enforcement is sought. Any signatures delivered by a party by
facsimile transmission or by e-mail transmission shall be deemed an original
signature hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
executed under seal by their duly authorized officers in Atlanta, Georgia, all
as of the day and year first above written.
BORROWERS: OXFORD INDUSTRIES, INC., as a Borrower
By: Thomas C. Chubb III
/s/_________________________
Name: Thomas C. Chubb III
Title: Executive Vice President
Thomas E. Campbell
Attest: /s/__________________________
Name: Thomas E. Campbell
Title: Secretary
OXFORD OF SOUTH CAROLINA, INC. as a Borrower
Thomas C. Chubb III
By: /s/___________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/___________________________
Name: Thomas E. Campbell
Title: Vice President
TOMMY BAHAMA GROUP, INC. (FORMERLY KNOWN AS
VIEWPOINT INTERNATIONAL, INC.), as a Borrower
Thomas C. Chubb III
By: /s/___________________________
Name: Thomas C. Chubb III
Title: Executive Vice President
Thomas E. Campbell
Attest: /s/___________________________
Name: Thomas E. Campbell
Title: Vice President
GUARANTORS: LIONSHEAD CLOTHING COMPANY, a Delaware
corporation
Thomas C. Chubb III
By: /s/__________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/__________________________
Name: Thomas E. Campbell
Title: Vice President
CONSENT AGREEMENT
OXFORD GARMENT, INC. a Delaware corporation,
(MERONA INDUSTRIES, INC., a Delaware
corporation merged into Oxford Garment,
Inc.)
Thomas C. Chubb III
By: /s/_____________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/_____________________________
Name: Thomas E. Campbell
Title: Vice President
OXFORD CARRIBBEAN, INC., a Delaware
corporation
Thomas C. Chubb III
By: /s/______________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/______________________________
Name: Thomas E. Campbell
Title: Vice President
BEN SHERMAN CLOTHING, INC., a Georgia
corporation
Thomas C. Chubb III
By: /s/______________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/______________________________
Name: Thomas E. Campbell
Title: Vice President
OXFORD GARMENT, INC., a Delaware corporation
Thomas C. Chubb III
By: /s/_____________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/__________________________
Name: Thomas E. Campbell
Title: Vice President
OXFORD INTERNATIONAL, INC., a Georgia
corporation
Thomas C. Chubb III
By: /s/_____________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/_____________________________
Name: Thomas E. Campbell
Title: Vice President
CONSENT AGREEMENT
TOMMY BAHAMA R&R HOLDINGS, INC., a
Delaware corporation
Thomas C. Chubb III
By: /s/_____________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/_____________________________
Name: Thomas E. Campbell
Title: Vice President
TOMMY BAHAMA BEVERAGES, LLC, a Delaware
limited liability company
By: TOMMY BAHAMA R&R HOLDINGS, INC.,
a Delaware corporation, as its sole
member
Thomas C. Chubb III
By: /s/_____________________________
Name: Thomas C. Chubb III
Title: Vice President
TOMMY BAHAMA TEXAS BEVERAGES, LLC, a
Texas limited liability company
By: TOMMY BAHAMA BEVERAGES, LLC, a
Delaware limited liability company,
as its sole member
By: TOMMY BAHAMA R&R HOLDINGS,
INC., a
Delaware corporation, as
its sole member
Thomas C. Chubb III
By: /s/_____________________________
Name: Thomas C. Chubb III
Title: Vice President
PIEDMONT APPAREL CORPORATION, a Delaware
corporation
Thomas C. Chubb III
By: /s/_______________________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/_______________________________
Name: Thomas E. Campbell
Title: Vice President
SFI OF OXFORD ACQUISITION CORPORATION, a
Delaware corporation
Thomas C. Chubb III
By: /s/_____________________
Name: Thomas C. Chubb III
Title: Vice President
Thomas E. Campbell
Attest: /s/_______________________
Name: Thomas E. Campbell
Title: Vice President
LENDER GROUP: SUNTRUST BANK, as the Administrative Agent, an
Issuing Bank and a Lender
E. Donald Besch, Jr.
By: /s/_____________________________
Name: E. Donald Besch, Jr.
Title: Managing Director
BANK OF AMERICA, N.A., as a Lender and an
Issuing Bank
John E. Williams
By: /s/_____________________________
Name: John E. Williams
Title: Senior Vice President
CONSENT AGREEMENT
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
Brian P. Schwinn
By: /s/_______________________________
Name: Brian P. Schwinn
Title: Duly Authorized Signatory
CONSENT AGREEMENT
HSBC BUSINESS CREDIT (USA) INC., as a Lender
Dan Bueno
By: /s/_________________________________
Name: Dan Bueno
Title: Vice President
CONSENT AGREEMENT
JPMORGAN CHASE BANK, as a Lender
James A. Knight
By: /s/_______________________________
Name: James A. Knight
Title: Vice President
CONSENT AGREEMENT
SHANGHAI COMMERCIAL BANK LTD., as a Lender
and an Issuing Bank
Timothy Chan
By: /s/_________________________________
Name: Timothy Chan
Title: Vice President
Cheu N. Wu
By: /s/_________________________________
Name: Cheu N. Wu
Title: Associate Vice President
CONSENT AGREEMENT
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as a Lender
William Johannesen
By: /s/_________________________________
Name: William Johannesen
Title: Vice President
CONSENT AGREEMENT
WACHOVIA BANK, NATIONAL ASSOCIATION, as
a Lender and an Issuing Bank
Anne L. Sayles
By: /s/______________________________
Name: Anne L. Sayles
Title: Senior Vice President
CONSENT AGREEMENT
HSBC BANK USA, NATIONAL ASSOCIATION
(formerly HSBC Bank USA), as an Issuing Bank
Jose M. Cruz
By: /s/________________________________
Name: Jose M. Cruz
Title: Senior Vice President
CONSENT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION, as a Lender
James A. Colella
By: /s/________________________________
Name: James A. Colella
Title: Managing Director
CONSENT AGREEMENT
ISRAEL DISCOUNT BANK OF NEW YORK, as a
Lender
Andy Ballia
By: /s/_______________________________
Name: Andy Ballia
Title: First Vice President
Ronald Bongiovanni
By: /s/_________________________________
Name: Ronald Bongiovanni
Title: Senior Vice President