Exhibit 10.2
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TERM LOAN AGREEMENT
Dated as of May 24, 2002
among
PILLOWTEX CORPORATION
Borrower
BANK OF AMERICA, N.A.
Administrative Agent
and
the LENDERS party hereto
$150,000,000 Term Loan
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TABLE OF CONTENTS
Page
ARTICLE I Definitions ..................................................................... 2
Section 1.1 Definitions .............................................................. 2
ARTICLE II Post-Petition Debt Satisfied by Term Loan ....................................... 11
Section 2.1 Satisfaction and Payment of Designated Post-Petition Claims .............. 11
Section 2.2 The Term Notes ........................................................... 11
Section 2.3 Repayment of Term Loan ................................................... 11
Section 2.4 Interest ................................................................. 11
ARTICLE III Payments ........................................................................ 12
Section 3.1 Method of Payment ........................................................ 12
Section 3.2 Voluntary Prepayment ..................................................... 12
Section 3.3 Mandatory Prepayments .................................................... 12
Section 3.4 Administration Fee ....................................................... 13
ARTICLE IV Interest Provisions ............................................................. 14
Section 4.1 Computation of Interest .................................................. 14
ARTICLE V Security ........................................................................ 14
Section 5.1 Collateral ............................................................... 14
Section 5.2 Guaranty Agreement and Supplements ....................................... 15
Section 5.3 Setoff ................................................................... 15
Section 5.4 Release of Certain Collateral ............................................ 15
ARTICLE VI Conditions Precedent ............................................................ 16
Section 6.1 Conditions to the Term Loan .............................................. 16
ARTICLE VII Representations and Warranties .................................................. 18
Section 7.1 Corporate Existence ...................................................... 18
Section 7.2 Financial Condition ...................................................... 19
Section 7.3 Corporate Action; No Breach .............................................. 19
Section 7.4 Operation of Business .................................................... 19
Section 7.5 Litigation and Judgments ................................................. 20
Section 7.6 Rights in Properties; Liens .............................................. 20
Section 7.7 Enforceability ........................................................... 20
Section 7.8 Approvals ................................................................ 20
Section 7.9 Debt ..................................................................... 21
Section 7.10 Taxes .................................................................... 21
Section 7.11 Use of Proceeds; Margin Securities ....................................... 21
Section 7.12 ERISA .................................................................... 21
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TABLE OF CONTENTS
(continued)
Section 7.13 Disclosure .............................................................. 21
Section 7.14 Subsidiaries ............................................................ 21
Section 7.15 Agreements .............................................................. 22
Section 7.16 Compliance with Laws .................................................... 22
Section 7.17 Investment Company Act .................................................. 22
Section 7.18 Public Utility Holding Company Act ...................................... 22
Section 7.19 Environmental Matters ................................................... 22
Section 7.20 No Change ............................................................... 23
Section 7.21 Patents, Copyrights, Permits, Trademarks and Licenses ................... 23
ARTICLE VIII Affirmative Covenants .......................................................... 24
Section 8.1 Reporting Requirements .................................................. 24
Section 8.2 Maintenance of Existence ................................................ 26
Section 8.3 Maintenance of Properties 27
Section 8.4 Taxes and Claims ........................................................ 27
Section 8.5 Insurance ............................................................... 27
Section 8.6 Inspection Rights ....................................................... 27
Section 8.7 Keeping Books and Records ............................................... 27
Section 8.8 Compliance with Laws .................................................... 27
Section 8.9 Compliance with Agreements .............................................. 28
Section 8.10 Further Assurances ...................................................... 28
Section 8.11 ERISA ................................................................... 28
Section 8.12 Environmental Laws ...................................................... 28
ARTICLE IX Negative Covenants ............................................................. 29
Section 9.1 Debt .................................................................... 29
Section 9.2 Limitation on Liens 30
Section 9.3 Mergers, Etc ............................................................ 31
Section 9.4 Restricted Payments ..................................................... 31
Section 9.5 Loans and Investments ................................................... 31
Section 9.6 Transactions With Affiliates 32
Section 9.7 Disposition of Assets ................................................... 32
Section 9.8 Sale and Leaseback ...................................................... 33
Section 9.9 Prepayment of Debt ...................................................... 33
Section 9.10 Nature of Business ...................................................... 33
Section 9.11 Accounting .............................................................. 33
ARTICLE X Financial Covenants ............................................................ 33
Section 10.1 Interest Coverage Ratio ................................................. 34
Section 10.2 Leverage Ratio .......................................................... 34
ARTICLE XI Default ........................................................................ 34
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TABLE OF CONTENTS
(continued)
Page
Section 11.1 Events of Default ........................................................ 34
Section 11.2 Remedies Upon Default .................................................... 36
ARTICLE XII The Administrative Agent ........................................................ 37
Section 12.1 Appointment, Powers and Immunities ....................................... 37
Section 12.2 Rights of Administrative Agent as a Lender ............................... 38
Section 12.3 Sharing of Payments, Etc ................................................. 38
Section 12.4 Indemnification .......................................................... 39
Section 12.5 Independent Credit Decisions ............................................. 40
Section 12.6 Several Commitments ...................................................... 40
Section 12.7 Successor Administrative Agent ........................................... 40
ARTICLE XIII Miscellaneous ................................................................... 41
Section 13.1 Expenses ................................................................. 41
Section 13.2 INDEMNIFICATION .......................................................... 41
Section 13.3 Limitation of Liability .................................................. 41
Section 13.4 No Duty .................................................................. 42
Section 13.5 Administrative Agent and Lenders Not Fiduciary ........................... 42
Section 13.6 Equitable Relief ......................................................... 42
Section 13.7 No Waiver; Cumulative Remedies ........................................... 42
Section 13.8 Successors and Assigns ................................................... 42
Section 13.9 Survival ................................................................. 45
Section 13.10 Amendments and Waivers ................................................... 45
Section 13.11 Maximum Interest Rate .................................................... 46
Section 13.12 Notices .................................................................. 46
Section 13.13 Governing Law ............................................................ 48
Section 13.14 Counterparts ............................................................. 48
Section 13.15 Severability ............................................................. 48
Section 13.16 Headings ................................................................. 48
Section 13.17 Non-Application of Chapter 346 of Texas Finance Code ..................... 48
Section 13.18 Construction ............................................................. 48
Section 13.19 WAIVER OF JURY TRIAL ..................................................... 48
Section 13.20 NO ORAL AGREEMENTS ....................................................... 48
Section 13.21 Confidentiality .......................................................... 49
-iii-
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (this "Agreement"), dated as of May 24, 2002,
is among PILLOWTEX CORPORATION, a Delaware corporation (the "Borrower"), the
several lenders from time to time parties hereto (collectively, the "Lenders")
and Bank of America, N.A., as Administrative Agent (in such capacity, the
"Administrative Agent").
R E C I T A L S :
WHEREAS, Pillowtex Corporation, a Texas corporation ("Old Pillowtex"),
the Administrative Agent and certain of the Lenders are party to that certain
Term Credit Agreement dated as of December 19, 1997, as amended, and Old
Pillowtex, the Administrative Agent and certain of the Lenders are party to that
certain Amended and Restated Credit Agreement dated as of December 19, 1997, as
amended (collectively, the "Pre-Petition Credit Agreements");
WHEREAS, on November 14, 2000 (the "Filing Date") Old Pillowtex filed
with the United States Bankruptcy Court for the District of Delaware, a
voluntary petition for relief under Chapter 11 of the United States Bankruptcy
Code (the "Bankruptcy Code") (the "Voluntary Bankruptcy Case");
WHEREAS, on the Filing Date, certain of Old Pillowtex's Subsidiaries
filed with the United States Bankruptcy Court for the District of Delaware
voluntary petitions for relief under Chapter 11 of the Bankruptcy Code (together
with the Voluntary Bankruptcy Case, the "Chapter 11 Cases");
WHEREAS, in connection with the Chapter 11 Cases, $150,000,000 of the
Lenders' secured claims under the Pre-Petition Credit Agreements were repaid and
re-advanced (or deemed repaid and re-advanced) on a post-petition basis and
designated as post-petition administrative claims (the "Designated Post-Petition
Claims");
WHEREAS, in connection with the Chapter 11 Cases, Old Pillowtex and
certain of its Subsidiaries filed with the United States Bankruptcy Court for
the District of Delaware a Second Amended Joint Plan of Reorganization (the
"Plan of Reorganization") under which it is proposed that, among other things,
(a) Old Pillowtex merge with the Borrower, the Borrower being the surviving
entity, and (b) the Designated Post-Petition Claims be satisfied, in full, by
the issuance to the Lenders of an aggregate principal amount of $150,000,000 in
term notes by the Borrower; and
WHEREAS, the Lenders have agreed to such treatment of the Designated
Post-Petition Claims, subject to the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties hereto agree as follows:
TERM LOAN AGREEMENT - Page 1
ARTICLE I
Definitions
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Administrative Agent" means Bank of America, N.A., as administrative
agent for the Lenders, and any of its successors or assigns serving in such
capacity.
"Affiliate" means, as to any Person, (a) any Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with such Person, or (b) any Person who is a
director or officer (i) of such Person, (ii) of any Subsidiary of such
Person or (iii) of any Person described in clause (a) above. For purposes
of this definition, control of a Person shall mean the power, direct or
indirect, (i) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person, whether by ownership of
securities, contract, proxy or otherwise or (ii) to direct or cause the
direction of the management and policies of such Person, whether by
ownership of securities, contract, proxy or otherwise. Notwithstanding
anything in this definition to the contrary, in no event shall the
Administrative Agent or any Lender be considered an Affiliate of Borrower
or any of its Subsidiaries.
"Agreement" has the meaning specified in the recitals hereto.
"Alabama Bonds" means those certain Revenue Bonds (Fieldcrest ▇▇▇▇▇▇,
Inc. Textile Mill Financing) issued by The Industrial Development Board of
the City of Phenix City, Alabama (the "Issuer") pursuant to a Trust
Indenture dated July 1, 1994 between the Issuer and Columbus Bank & Trust
Company, as trustee, as modified by that certain First Supplemental Trust
Indenture dated December 1, 1998 between the Issuer and Synovus Trust
Company, as successor trustee.
"Assignment Agreement" means an assignment agreement substantially in
the form of Exhibit B hereto.
"Borrower" means Pillowtex Corporation, a Delaware corporation, and
any of its permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial lenders in Dallas, Texas, or Charlotte, North Carolina
are authorized or required by law to close.
"Bond Pledge Agreement" means the bond pledge agreement of the
Borrower in favor of the Administrative Agent in substantially the form of
Exhibit "F" hereto, as the same may be amended, supplemented, or modified.
"Capital Expenditures" means, for any Person, all expenditures for
assets which, in accordance with GAAP, are properly classified as
equipment, real property,
TERM LOAN AGREEMENT - Page 2
improvements, fixed assets or a similar type of capitalized asset and which
would be required to be capitalized and shown on the balance sheet of such
Person.
"Capital Lease Obligations" means, as to any Person, the obligations
of such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) real and/or personal property, which
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP. For purposes of this
Agreement, the amount of such Capital Lease Obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Cash Equivalents" means (a) obligations issued or fully guaranteed or
insured by the United States Government or any state thereof, the District
of Columbia or the Commonwealth of Puerto Rico or any agency or
instrumentality thereof having maturities of not more than 12 months from
the date of acquisition, (b) certificates of deposit and Eurodollar time
deposits with maturities of 12 months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding 12 months and other
interest bearing deposits or accounts, in each case with any Lender or with
any commercial bank organized under the laws of the United States of
America or any state thereof, the District of Columbia or the Commonwealth
of Puerto Rico, each having capital and surplus in excess of $100,000,000,
(c) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a) and (b) entered
into with any financial institution meeting the qualifications specified in
clause (b) above, (d) commercial paper issued by any Lender or any
Affiliate of any Lender and commercial paper rated A/1 or the equivalent
thereof by Standard & Poor's Ratings Group or P-1 or the equivalent thereof
by ▇▇▇▇▇'▇ Investors Service, Inc. on the date of investment and in each
case maturing within 12 months after the date of acquisition; and (e) money
market funds that invest exclusively in securities of the type described in
any of the foregoing clauses (a)-(d).
"Chapter 11 Cases" has the meaning specified in the recitals to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated and rulings issued thereunder.
"Collateral" has the meaning specified in Section 5.1.
"Company Property" has the meaning specified in Section 7.6.
"Debt" means as to any Person at any time (without duplication): (a)
all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, notes, debentures, or other similar
instruments, (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade and other accounts
payable and current accrued expenses payable of such Person arising in the
ordinary course of business which are not past due by more than ninety (90)
days, (d) all Capital Lease Obligations of such Person, provided that,
solely for purposes of calculating the Leverage Ratio for periods ending on
or prior to March 31, 2003, Capital Lease Obligations permitted by Section
9.1(f) shall be excluded from this definition of
TERM LOAN AGREEMENT - Page 3
"Debt", (e) all Debt or other obligations of others guaranteed by such
Person, (f) all obligations secured by a Lien existing on property owned by
such Person, whether or not the obligations secured thereby have been
assumed by such Person or are non-recourse to the credit of such Person,
(g) all reimbursement obligations of such Person (whether contingent or
otherwise) in respect of letters of credit, bankers' acceptances, surety or
other bonds and similar instruments, and (h) the aggregate amount of
preferred stock issued by such Person.
"Default" means an Event of Default or the occurrence of an event or
condition which with notice or lapse of time or both would become an Event
of Default.
"Default Rate" means a fixed rate equal to 12% per annum.
"Designated Post-Petition Claims" has the meaning specified in the
recitals to this Agreement.
"Dollars" and "$" mean lawful money of the United States of America.
"Earnings From Operations" has the meaning given to such term pursuant
to GAAP.
"EBITDA" means, for any period, determined in accordance with GAAP on
a consolidated basis for the Borrower and its Subsidiaries the sum of (a)
Earnings From Operations plus (b) depreciation and amortization to the
extent included in determining Earnings From Operations, plus (c)
restructuring charges and impairment of long-lived assets up to and
including the date of this Agreement, to the extent included in determining
Earnings From Operations, plus (d) other non-cash charges (excluding any
such non-cash charge to the extent it represents an accrual of or reserve
for cash charges in any future period or amortization of a prepaid cash
expense that was paid in a prior period except as noted in (c), above) to
the extent included in determining Earnings From Operations, plus (e)
professional fees incurred outside the ordinary course of business up to
and including the date of this Agreement including legal counsel, financial
advisors, human resource consultants, manufacturing consultants and cash
management consultants to the extent included in determining Earnings From
Operations, plus (f) Operational Restructuring Costs incurred on or before
March 31, 2003, to the extent included in determining Earnings From
Operations but not included in (c) and (e) above, not to exceed the amounts
set forth in Schedule 1.2 for the applicable 12-month periods described in
Schedule 1.2, plus (g) non-cash compensation expense, to the extent
included in determining Earnings From Operations, plus (h) solely for the
twelve-month period ending on the last day of the Borrower's third fiscal
quarter of 2002, charges taken in the Borrower's fourth fiscal quarter of
2001 as a result of the write-down of accounts receivable owed to the
Borrower and its Subsidiaries by Kmart Corporation, to the extent included
in determining Earnings From Operations, plus (i) costs incurred in
connection with the preparation of an S-1 securities registration offering.
"Environmental Laws" means any and all applicable Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or other
TERM LOAN AGREEMENT - Page 4
applicable requirements of any Governmental Authority regulating, or
imposing liability or standards of conduct concerning environmental
protection matters, as now or may at any time hereafter be in effect,
including, without limitation, any applicable provisions of the Clean Water
Act, the Comprehensive Environmental Response, Compensation and Liability
Act, the Superfund Amendment and Reauthorization Act of 1986, the Emergency
Planning and Community Right to Know Act, the Resource Conservation and
Recovery Act of 1976, the Safe Drinking Water Act, and the Toxic Substances
Control Act, together, in each case, with each amendment, supplement or
other modification thereto, and the regulations adopted and publications
promulgated thereunder and all substitutions therefor.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations thereunder.
"ERISA Affiliate" means any corporation or trade or business which is
a member of the same controlled group of corporations (within the meaning
of Section 414(b) of the Code) as the Borrower or is under common control
(within the meaning of Section 414(c) of the Code) with the Borrower.
"Event of Default" has the meaning specified in Section 11.1.
"Excess Cash Flow" means, for the Borrower and its Subsidiaries on a
consolidated basis for any fiscal year of the Borrower, an amount equal to
(a) EBITDA for such period, minus (b) the sum of the following, without
duplication: (i) payments made on Debt during such period; (ii) the portion
of Interest Expense for such period actually paid in cash during such
period; (iii) the portion of Tax Expense for such period actually paid in
cash during such period; (iv) actual non-financed Capital Expenditures for
such period; (v) payments and prepayments of the Term Loan paid in cash;
(vi) payments of charges included in clauses (c), (e) and (f) of the EBITDA
definition above; and (vii) payments of any items included as
"Reorganization Items" related to the Chapter 11 Cases in accordance with
GAAP in the Borrower's and its Subsidiaries' consolidated statements of
earnings and payments required by the Plan of Reorganization.
"Fee Property" has the meaning specified in Section 7.6.
"Fixed Rate" means a fixed rate equal to 10.00% per annum.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis, as set forth in Opinions of the Accounting Principles
Board of the American Institute of Certified Public Accountants and/or in
statements of the Financial Accounting Standards Board and/or their
respective successors and which are applicable in the circumstances as of
the date of this Agreement. Accounting principles are applied on a
"consistent basis" when the accounting principles applied in a current
period are comparable in all material respects to those accounting
principles applied in a preceding period.
TERM LOAN AGREEMENT - Page 5
"Governmental Authority" means any nation or government, any state or
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory, or administrative functions of or
pertaining to government.
"Guarantors" means all of Borrower's direct and indirect domestic
Subsidiaries (whether presently existing or hereafter formed or acquired),
other than the Fieldcrest ▇▇▇▇▇▇ Foundation.
"Guaranty Agreement" means the guaranty agreement executed by
Guarantors in favor of the Administrative Agent in substantially the form
of Exhibit "E" hereto, as the same may be amended, supplemented, or
modified.
"Hazardous Materials" means any hazardous materials, hazardous wastes,
hazardous or toxic substances, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos, gasoline and
any other petroleum products (including crude oil or any fraction thereof).
"Intellectual Property Security Agreements" means intellectual
property security agreement of the Borrower and any applicable Subsidiary
in favor of the Administrative Agent in substantially the form of Exhibit
"D" hereto, as the same may be amended, supplemented, or modified.
"Intercreditor Agreement" means an intercreditor agreement among the
Borrower, the other Obligated Parties, the Administrative Agent, the
Revolving Lenders and Congress Financial Corporation, as the agent under
the Revolving Credit Agreement, in form and substance satisfactory to the
Administrative Agent, the Revolving Lenders, the agent for such Revolving
Lenders and the Borrower, setting forth the relative rights of the
Administrative Agent and Lenders hereunder and the Revolving Lenders, and
the agent for such Revolving Lenders, under the Revolving Credit Agreement,
with respect to the Collateral.
"Interest Coverage Ratio" means, as of any date of determination, for
the 12-month period then ended for the Borrower and its Subsidiaries, the
ratio of (a) EBITDA for such 12-month period, to (b) Interest Expense
during such 12-month period.
"Interest Expense" means, for any period, the aggregate amount of all
interest paid or accrued as a liability during such period in respect of
indebtedness for borrowed money, including, without limitation, the portion
of payments of Capital Lease Obligations which constitutes imputed
interest, all as determined by GAAP.
"Leased Property" has the meaning specified in Section 7.6.
"Lender Affiliate" means (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaging in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender and (b) with respect to
any Lender that is a
TERM LOAN AGREEMENT - Page 6
fund that invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit
and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Lenders" has the meaning specified in the recitals to this
Agreement.
"Leverage Ratio" means, as of any date of determination, for the
12-month period then ended for the Borrower and its Subsidiaries, the
ratio of (a) Debt of the Borrower and its Subsidiaries on a consolidated
basis as of the last day of such period, to (b) EBITDA during such
period.
"Lien" means any lien, mortgage, security interest, tax lien,
financing statement, pledge, charge, hypothecation, assignment,
preference, priority, or other encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or title
retention agreement), whether arising by contract, operation of law, or
otherwise, other than financing statements filed in connection with
operating leases to the extent such financing statements relate only to
the property subject to such operating leases.
"Loan Documents" means this Agreement and all promissory notes,
pledge and security agreements, deeds of trust, mortgages, assignments,
guaranties, and other instruments, documents, and agreements executed and
delivered pursuant to or in connection with this Agreement, as such
instruments, documents, and agreements may be amended, modified, renewed,
extended, or supplemented from time to time.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the business, prospects,
operations, results of operations, assets, liabilities or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a
whole, other than the Chapter 11 Cases or (b) a material adverse effect
upon the validity, binding effect or enforceability against the Borrower
or any other Obligated Party of any Loan Document.
"Maturity Date" means May 24, 2007.
"Maximum Borrowing Base" means the amount available to be loaned
to the Borrower pursuant to the terms of the Revolving Credit Agreement.
"Maximum Rate" means, at any time, with respect to each Lender,
the maximum nonusurious interest rate, if any, that at any time or from
time to time may be contracted for, taken, reserved, charged or received
on the Term Loan or on other Debt under laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now allow.
"Merger Agreement" means the Agreement and Plan of Merger, dated
to be effective as of May 24, 2002 between Old Pillowtex and the
Borrower, as amended through the date hereof, and any agreements,
documents or instruments executed or delivered in connection therewith
and any renewals, extensions, amendments, restatements or other
modifications of any of the above.
TERM LOAN AGREEMENT - Page 7
"Mortgages" means mortgages, deeds of trust, leasehold
mortgages, or leasehold deeds of trust, as appropriate, executed by the
Borrower or the applicable Subsidiary, as the case may be, in form and
substance satisfactory to the Administrative Agent, granting a first or
second priority lien, as applicable, to the Administrative Agent for the
benefit of the Lenders on the applicable real property.
"Moveable Assets" means all right, title and interest of the
Borrower and its Subsidiaries in the machinery and equipment described on
Schedule 1.4 and located as of March 15, 2002 at (i) the China Grove,
North Carolina facility known as Plant #16, (ii) the Kannapolis, North
Carolina sheet mill known as Plant #4, (iii) the Phenix City, Alabama
facility and (iv) the Columbus, Georgia facility.
"Multiemployer Plan" means a multiemployer plan defined as such
in Section 4001(a)(3) of ERISA to which contributions have been made by
the Borrower or any ERISA Affiliate and which is covered by Title IV of
ERISA.
"Net Cash Proceeds" means, with respect to any sale or other
transfer or disposition of any asset of a Person to a third party, the
aggregate amount of cash and Cash Equivalents received by such Person in
connection with such transaction minus reasonable fees, commissions,
costs and expenses and related taxes paid or payable as a result of such
transaction.
"Obligated Party" means the Borrower, any Guarantor and any
other Person who is or becomes a party to any agreement that guarantees
or secures payment and performance of the Obligations or any part
thereof.
"Obligations" means all (a) obligations, indebtedness, and
liabilities of the Borrower and Guarantors to the Administrative Agent or
any Lender (other than those, if any, arising under the Revolving Credit
Agreement), now existing or hereafter arising, whether direct, indirect,
related, unrelated, fixed, contingent, liquidated, unliquidated, joint,
several, or joint and several (i) under this Agreement and the other Loan
Documents, or (ii) pursuant to any cash management or treasury management
arrangements, (b) all interest accruing on any of the above and (c) all
reasonable out-of-pocket third party attorneys' fees, financial advisors'
fees and other expenses incurred in the enforcement or collection of any
of the above, including interest accruing after the commencement of any
bankruptcy proceeding, whether or not allowed as a claim in such
proceeding.
"Old Pillowtex" has the meaning specified in the recitals to
this Agreement.
"Operational Restructuring Costs" for any period, on a
consolidated basis for the Borrower and its Subsidiaries, the costs
related to the permanent closure of a facility or facilities and the
relocation of the production to an alternative facility or facilities to
the extent included in determining Earnings From Operations consisting of
the sum of (a) payments or accruals for severance and benefit
continuation, plus (b) payments or accruals for employee retention
bonuses, plus (c) expenses incurred to relocate equipment and inventory
from a closed facility or facilities to an alternative manufacturing
location
TERM LOAN AGREEMENT - Page 8
or locations, and to retrofit relocated equipment and alternative
manufacturing location assets, plus (d) payments or accruals to resolve
any environmental issues related to a closed facility or facilities, plus
(e) employee training costs for the relocated equipment, plus (f)
increased quality costs due to the start-up of production at the new
facility or facilities and the phase-down of production at the closed
facility or facilities, plus (g) increased labor and workers compensation
costs during the phase-down of production at the closed facility or
facilities, plus (h) payments or accruals for a general reduction in
force.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to all or any of its functions under ERISA.
"Percentage" means, with respect to each Lender, the percentage
set forth opposite such Lender's name on Schedule 1.1 attached hereto, or
on any applicable Assignment Agreement.
"Permitted Liens" has the meaning specified in Section 9.2.
"Person" means any individual, corporation, business trust,
association, company, partnership, joint venture, Governmental Authority,
or other entity.
"Pillowtex Merger" means the merger of Old Pillowtex into the
Borrower pursuant to the Merger Agreement.
"Plan" means any employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and which is covered by
Title IV of ERISA.
"Plan of Reorganization" has the meaning specified in the
recitals to this Agreement.
"Pledge and Security Agreement" means the pledge and security
agreement of the Borrower and the Guarantors in favor of the
Administrative Agent in substantially the form of Exhibit "C" hereto, as
the same may be amended, supplemented, or modified.
"Prohibited Transaction" means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code, other than a
transaction exempt under Section 408 of ERISA or Section 4975 of the
Code.
"Reportable Event" means any of the events set forth in Section
4043 of ERISA for which reporting requirements have not been waived.
"Required Lenders" means, as of any date, Lenders on such date
having Percentages aggregating in excess of 50%.
"Revolving Credit Agreement" means the Revolving Credit
Agreement of even date herewith among the Borrower, certain of its
Subsidiaries, the Revolving Lenders, and Congress Financial Corporation,
as agent for such Revolving Lenders, providing for
TERM LOAN AGREEMENT - Page 9
an aggregate commitment to lend of no greater than $200,000,000, as
amended, extended, renewed, restated, replaced or refinanced as permitted
hereby.
"Revolving Lenders" means, as of any date, the lenders that are
party to the Revolving Credit Agreement.
"Revolving Loan Assets" means all of the assets of the Borrower
and its Subsidiaries (other than the Subject Assets) which are subject to
first priority Liens pursuant to the Revolving Credit Agreement and
related documents executed in connection therewith.
"RICO" means the Racketeer Influenced and Corrupt Organization
Act of 1970, as amended from time to time.
"Subject Assets" means all right, title and interest of the
Borrower and its Subsidiaries in the fixed assets (including certain real
estate) described on Schedule 1.3, located as of March 15, 2002 at (i)
the Phenix City, Alabama facility and at the Columbus, Georgia facility,
(ii) the Scottsboro, Alabama facility, and (iii) the Mauldin, South
Carolina warehouse facility, the Tarboro, North Carolina yarn mill, the
Salisbury, North Carolina facility known as Plant #7, the China Grove,
North Carolina facility known as Plant #16 (not including the real estate
or certain equipment), the Rocky Mount, North Carolina facility, the
Kannapolis, North Carolina sheet mill known as Plant #4, and the Dallas,
Texas ASL Facility.
"Subordinated Debt" means with respect to the Borrower or any
Guarantor, Debt of the Borrower or such Guarantor which is subordinated
to the Obligations on terms and conditions and containing such
amortization, covenants, events of default and other terms as are
satisfactory to the Required Lenders.
"Subsidiary" means, as to any Person, any corporation or other
entity of which shares of stock (or analogous ownership interests) of
each class having ordinary voting power (other than stock having such
power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation
or other entity are at the time owned by such Person or by one or more
Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person. A Subsidiary shall be deemed wholly-owned by
a Person who owns all of the shares of stock (or analogous ownership
interests) entitled to vote for the election of directors or other
managers of such Subsidiary except for directors' qualifying shares.
"Tax Expense" means, for any period, all expenses incurred
during such period by the Borrower and its Subsidiaries, on a
consolidated basis, in connection with income tax obligations, all as
determined in accordance with GAAP applied consistently.
"Term Loan" has the meaning specified in Section 2.1.
"Term Notes" means the promissory notes payable to the order of
the Lenders, each in substantially the form of Exhibit "A" hereto, and
all extensions, renewals, and modifications thereof.
TERM LOAN AGREEMENT - Page 10
"UCC" means the Uniform Commercial Code as in effect from time
to time in the State of Texas and the Uniform Commercial Code applicable
in such other states as any Collateral may be located.
Other Definitional Provisions. All definitions contained in this
Agreement are equally applicable to the singular and plural forms of the terms
defined. The words "hereof", "herein", and "hereunder" and words of similar
import referring to this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Unless otherwise specified, all
Article and Section references pertain to this Agreement. All accounting terms
not specifically defined herein shall be construed in accordance with GAAP.
Terms used herein that are defined in the UCC, unless otherwise defined herein,
shall have the meanings specified in the UCC.
ARTICLE II
Post-Petition Debt Satisfied by Term Loan
Section 2.1 Satisfaction and Payment of Designated Post-Petition Claims.
Subject to the terms and conditions of this Agreement, the Lenders severally
(but not jointly) agree to make to the Borrower on the date hereof a
$150,000,000 principal amount term loan (the "Term Loan"), which shall be used
solely to pay in full the Debt evidenced by the Designated Post-Petition Claims.
The Borrower and each Lender agree that upon the making of the Term Loan on the
date hereof, the Designated Post-Petition Claims shall be fully satisfied.
Section 2.2 The Term Notes. The obligation of the Borrower to repay the
Term Loan shall be evidenced by the Term Notes executed by the Borrower, one
payable to the order of each Lender in the stated principal amount of such
Lender's Percentage of the Term Loan, and dated the date hereof.
Section 2.3 Repayment of Term Loan. The Term Loan shall mature, and the
outstanding principal amount thereof shall be due and payable (together with
interest accrued thereon), on the Maturity Date. In addition, on the last day of
each December and June, commencing on December 31, 2002 and continuing until the
Term Loan is paid, in full, the Borrower shall repay, and there shall become due
and payable, a principal installment consisting of the original principal amount
of the Term Loan (less any amounts paid pursuant to Section 3.3(c) hereof),
multiplied by the percentage set forth below opposite the payment date:
--------------------------------------------------------------------------------
Payment Dates Installment Amount Due
--------------------------------------------------------------------------------
December 31, 2002 and June 30, 2003 0.5% each
--------------------------------------------------------------------------------
December 31, 2003 and June 30, 2004 2.5% each
--------------------------------------------------------------------------------
December 31, 2004 through and including December 31, 2006 5.0% each
--------------------------------------------------------------------------------
May 24, 2007 69%
--------------------------------------------------------------------------------
Section 2.4 Interest. The unpaid principal amount of the Term Loan shall
bear interest prior to maturity or the occurrence of an Event of Default at a
fixed rate per annum equal to the Fixed Rate. After maturity of the Term Loan or
upon the occurrence and during the continuance of an Event of Default, any
outstanding principal of the Term Loan and (to the fullest extent
TERM LOAN AGREEMENT - Page 11
permitted by law) any other amount payable by the Borrower under this Agreement
or any other Loan Document shall bear interest at the Default Rate until the
same is paid in full. Interest payable at the Fixed Rate shall be payable on the
last day of each March, June, September, and December, commencing September 30,
2002, and continuing on to the Maturity Date. Interest payable at the Default
Rate shall be payable from time to time on demand. The interest due under this
Section 2.4 will be calculated taking into account any interest paid in
accordance with Sections 3.2 and 3.3(d) such that there will be no duplication
of interest paid.
ARTICLE III
Payments
Section 3.1 Method of Payment. All payments of principal, interest, and
other amounts to be made by the Borrower under this Agreement and the other Loan
Documents shall be made to the Administrative Agent at its office located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ for the account of each Lender in Dollars and
in immediately available funds, without setoff, deduction, or counterclaim, not
later than 12 Noon., Dallas, Texas time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day). Each payment received by
the Administrative Agent under this Agreement or any other Loan Document for the
account of a Lender shall be paid promptly to such Lender, in immediately
available funds. Whenever any payment under this Agreement or any other Loan
Document shall be stated to be due on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of the payment of
interest and commitment fee, as the case may be.
Section 3.2 Voluntary Prepayment. The Borrower may prepay the Term Loan in
whole or in part at any time or from time to time without premium or penalty
together with accrued interest from the last interest payment date (per Section
2.4) to the date of prepayment on the amount so prepaid, provided that (a) the
Borrower shall give the Administrative Agent prior notice of such prepayment and
such notice shall be received by the Administrative Agent before ▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ time, one Business Day before the date of such prepayment, (b) the
date of such prepayment shall be a Business Day, and (c) each partial prepayment
shall be in the principal amount of $500,000 or an integral multiple thereof,
and shall be applied to principal installments of the Term Loan in inverse order
of maturity.
Section 3.3 Mandatory Prepayments.
(a) Promptly upon receipt by the Borrower or any of its
Subsidiaries of the Net Cash Proceeds from any sale or other transfer or
disposition of any of the Subject Assets or Moveable Assets, the Borrower
shall prepay the Term Loan in accordance with Section 3.3(d) of this
Agreement in a principal amount equal to 100% of such Net Cash Proceeds.
(b) Commencing on March 31, 2004 and on each March 31 thereafter
subject to the minimum excess availability requirements set forth in the
Revolving Credit Agreement, the Borrower shall prepay the Term Loan in
accordance with Section 3.3(d)
TERM LOAN AGREEMENT - Page 12
of this Agreement in a principal amount equal to 50% of Excess Cash
Flow, if any, for the fiscal year of the Borrower ending immediately
preceding each such March 31. Notwithstanding any of the above to the
contrary, if the Borrower does not have sufficient availability under
the Revolving Credit Agreement to obtain an advance thereunder for
purposes of making 100% of the prepayment described herein on March 31
of any applicable calendar year, such that giving effect to such
advance, the minimum excess availability requirements set forth in the
Revolving Credit Agreement are not satisfied, then (i) the Borrower
shall make a prepayment on March 31 in an amount equal to the amount
the Borrower may borrow under the Revolving Credit Agreement for such
purpose in accordance with such requirements, and (ii) on the Business
Day immediately following any day thereafter on which the Borrower has
sufficient availability under the Revolving Credit Agreement to obtain
an advance thereunder in accordance with such requirements for purposes
of making all or a portion of the remainder of such prepayment
described herein, the Borrower shall make a payment hereunder in the
amount of such availability until the prepayment described herein is
paid, in full.
(c) Subject to any minimum excess availability requirements set
forth in the Revolving Credit Agreement, if the aggregate amount of the
initial commitment obtained by the Borrower pursuant to the Revolving
Credit Agreement and the Maximum Borrowing Base shall both exceed
$150,000,000, the Borrower shall, on the date hereof, prepay the Term
Loan in accordance with Section 3.3(d) of this Agreement in a principal
amount equal to 100% of the lesser of (i) the amount by which the
initial commitment obtained by the Borrower under the Revolving Credit
Agreement exceeds $150,000,000 or (ii) the amount by which the Maximum
Borrowing Base exceeds $150,000,000.
(d) Any prepayment made under Section 3.3(a), Section 3.3(b) or
Section 3.3(c) shall (i) include accrued interest from the last
interest payment date (per Section 2.4) to the date of such prepayment
on the principal amount prepaid, (ii) not be subject to any minimum
payment provisions contained in this Agreement and (iii) be in addition
to the scheduled payments of the Term Loan required under Section 2.3
of this Agreement. Any prepayment made under Section 3.3(a) and Section
3.3(b) shall be applied to the unpaid principal installments of the
Term Loan in inverse order of maturity. Any prepayment made under
Section 3.3(c) shall reduce the amount of the Term Loan subject to the
scheduled amortization set forth in Section 2.3 of this Agreement.
Nothing in this Section 3.3 shall be deemed to permit any violation of
any other provision contained in this Agreement.
Section 3.4 Administration Fee. The Borrower shall pay to the
Administrative Agent, solely for the Administrative Agent's account, an annual
administration fee in the amount of $150,000, payable in advance on May 24 of
each calendar year, commencing on the date hereof so long as the Term Loan is
outstanding hereunder.
TERM LOAN AGREEMENT - Page 13
ARTICLE IV
Interest Provisions
Section 4.1 Computation of Interest. Interest on the Term Loan and all
other amounts payable by the Borrower hereunder shall be computed on the basis
of a year of 360 days and the actual number of days elapsed (including the first
day but excluding the last day) unless such calculation would result in a
usurious rate, in which case interest shall be calculated on the basis of a year
of 365 or 366 days, as the case may be.
ARTICLE V
Security
Section 5.1 Collateral. To secure full and complete payment and
performance of the Obligations, the Borrower hereby agrees to execute and
deliver or cause to be executed and delivered the documents described below
covering the property and collateral described in this Section 5.1 (which,
together with any other property and collateral which may now or hereafter
secure the Obligations or any part thereof, is sometimes herein called the
"Collateral"):
(a) The Borrower shall grant or cause to be granted to the
Administrative Agent, for the benefit of the Lenders, a first priority
Lien, subject to Permitted Liens, on all right, title and interest of
the Borrower or the applicable Subsidiary in and to the Subject Assets,
pursuant to the Pledge and Security Agreement, appropriate Mortgages
and other collateral documents.
(b) The Borrower shall grant to the Administrative Agent, for the
benefit of the Lenders, a first priority security interest in all of
the Alabama Bonds, pursuant to the Bond Pledge Agreement and any other
documents, agreements, or instruments reasonably required by the
Administrative Agent in connection therewith.
(c) The Borrower shall grant or cause to be granted to the
Administrative Agent, for the benefit of the Lenders, a second priority
security interest, subject to Permitted Liens, in all of the Revolving
Loan Assets, pursuant to the Pledge and Security Agreement, the
Intellectual Property Security Agreements and appropriate Mortgages and
other collateral documents.
(d) To evidence the Administrative Agent's first priority security
interest, subject to Permitted Liens, in certain Subject Assets and its
second priority security interest, subject to Permitted Liens, in the
Revolving Loan Assets, to the extent applicable, the Borrower will
cause each of its Subsidiaries created or acquired after the date
hereof to execute (i) a Security Agreement Supplement in substantially
the form of Exhibit G to the Pledge and Security Agreement, (ii) an
Intellectual Property Security Agreement, if requested by the
Administrative Agent or the Required Lenders, and (iii) any applicable
Mortgages, and deliver such documents to the Administrative Agent
within 10 Business Days after such Subsidiary is created or acquired.
Any title insurance policies, surveys, environmental site assessments
and other matters incident to the
TERM LOAN AGREEMENT - Page 14
Mortgages must be reasonably satisfactory to the Administrative Agent
in its reasonable discretion and shall be completed within such time
after such Subsidiary is acquired or created that the Administrative
Agent reasonably determines. The Borrower will also cause each such
Subsidiary to obtain and deliver to the Administrative Agent such
landlord lien waivers or subordinations as the Administrative Agent may
reasonably require which waivers or subordinations shall be delivered
to the Administrative Agent within such time after such Subsidiary is
acquired or created that the Administrative Agent reasonably
determines.
(e) The Borrower shall execute and cause to be executed such
further documents and instruments, including, without limitation,
Uniform Commercial Code financing statements, as the Administrative
Agent, in its sole discretion, deems necessary or desirable to create,
evidence, preserve, and perfect its liens and security interests in the
Collateral.
Section 5.2 Guaranty Agreement and Supplements.
(a) The Borrower shall cause the Guarantors to execute and
deliver the Guaranty Agreement in favor of the Administrative Agent,
for the benefit of the Lenders, guaranteeing full payment and
performance of the Obligations.
(b) The Borrower will cause each of its domestic Subsidiaries
created or acquired after the date hereof to execute a Guaranty
Supplement in substantially the form of Exhibit A to the Guaranty
Agreement and deliver such Guaranty Supplement to the Administrative
Agent within 10 Business Days after such Subsidiary is created or
acquired.
Section 5.3 Setoff. If an Event of Default shall have occurred and be
continuing, the Administrative Agent and each Lender are hereby authorized to
set off and apply at any time and from time to time, without notice to the
Borrower (any such notice being hereby expressly waived by the Borrower), to set
off and apply any and all deposits (general, time or demand, provisional or
final, but excluding trust and escrow accounts) at any time held and other
indebtedness at any time owing by the Administrative Agent or such Lender to or
for the credit or the account of the Borrower against any and all of the
Obligations in such manner as the Administrative Agent or such Lender may
determine. The rights and remedies of the Administrative Agent and the Lenders
hereunder are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Administrative Agent and the
Lenders may have.
Section 5.4 Release of Certain Collateral. In the event that, pursuant
to Section 3.3(a) of this Agreement, the Lenders receive an aggregate amount of
$7,000,000 in Net Cash Proceeds from the sale or sales of assets located at the
facilities described in clause (iii) of the definition of "Subject Assets" in
Section 1.1 of this Agreement, then the Administrative Agent will release all of
its Liens on the machinery and equipment located at the Phenix City, Alabama
facility (or formerly located there in the event such machinery and equipment
has been moved). Upon any sale or disposal of assets constituting Collateral
that is permitted pursuant to Section 9.7 of this Agreement, the Administrative
Agent will release all of its Liens on such assets.
TERM LOAN AGREEMENT - Page 15
ARTICLE VI
Conditions Precedent
Section 6.1 Conditions to the Term Loan. The obligation of the Lenders to
make the Term Loan is subject to the condition precedent that the Administrative
Agent shall have received on or before the date of the Term Loan all of the
following, each dated (unless otherwise indicated) the date hereof, in form and
substance satisfactory to the Administrative Agent:
(a) Resolutions. Resolutions of the Board of Directors (or
evidence of other equivalent partnership action) of the Borrower and
each Guarantor certified by the Secretary or an Assistant Secretary of
such Person which authorize (i) the execution, delivery, and
performance by the Borrower of this Agreement and the other Loan
Documents to which the Borrower is or is to be a party, and (ii) the
execution, delivery and performance by such Guarantor of the Guaranty
Agreement and the other Loan Documents to which such Guarantor is or is
to be a party;
(b) Incumbency Certificate. Certificates of incumbency certified
by the Secretary or an Assistant Secretary of the Borrower and each
Guarantor certifying the names of (i) the officers of the Borrower
authorized to sign this Agreement and each of the other Loan Documents
to which the Borrower is or is to be a party (including the
certificates contemplated herein) together with specimen signatures of
such officers, and (ii) the officers of such Guarantor authorized to
sign the Guaranty Agreement and the other Loan Documents to which such
Guarantor is or is to be a party (including the certificates
contemplated herein) together with specimen signatures of such
officers;
(c) Organizational Documents. The organizational documents of the
Borrower and each Guarantor certified by the jurisdiction of
incorporation/organization of the Borrower and such Guarantor and dated
within 30 days prior to the date hereof;
(d) Bylaws. The bylaws of the Borrower and each Guarantor
certified by the Secretary or an Assistant Secretary of such Person;
(e) Governmental Certificates. Certificates of the appropriate
government officials of the Borrower's and each Guarantor's
jurisdiction of incorporation/organization as to the existence and good
standing of the Borrower and such Guarantor, each dated within 30 days
prior to the date hereof;
(f) Term Notes. The Term Notes executed by the Borrower;
(g) Pledge and Security Agreement. The Pledge and Security
Agreement executed by the Borrower and the Guarantors;
(h) Bond Pledge Agreement. The Bond Pledge Agreement executed by
the Borrower, and any other documents, agreements, or instruments
reasonably required by the Administrative Agent in connection
therewith;
TERM LOAN AGREEMENT - Page 16
(i) Alabama Bonds. The Alabama Bonds, together with any endorsements,
assignments, or other evidences of the Administrative Agent's security
interest in such Alabama Bonds reasonably required by the Administrative
Agent;
(j) Intellectual Property Security Agreements. The Intellectual
Property Security Agreements executed by the Borrower and/or the applicable
Guarantors;
(k) Mortgages. The Mortgages executed by the Borrower and/or the
applicable Guarantors;
(l) Financing Statements. Uniform Commercial Code financing statements
in proper form for filing and covering the Collateral;
(m) Guaranty Agreement. The Guaranty Agreement executed by the
Guarantors;
(n) Insurance Policies. Copies of all insurance policies required by
Section 8.5, together with certificates from insurers naming the
Administrative Agent as an additional named insured with respect to all
insurance policies covering Collateral;
(o) Real Estate Appraisal. Appraisals of the Fee Properties
constituting the Collateral to the extent requested by the Administrative
Agent;
(p) Title Insurance. Mortgagee Policies of Title Insurance, with such
endorsements as the Administrative Agent may require, issued by a company
and in form and substance satisfactory to the Administrative Agent,
insuring the Administrative Agent's Lien on (i) the Fee Properties and
Leased Properties constituting Subject Assets to be of first priority,
subject only to Permitted Liens and such exceptions as Administrative Agent
shall approve in its discretion, and (ii) the Fee Properties and Leased
Properties constituting Revolving Loan Assets to be of second priority,
subject only to Permitted Liens and the Liens required by the Revolving
Credit Agreement and related documents and such other exceptions as the
Administrative Agent shall approve in its discretion, with all costs
thereof to be paid by Borrower;
(q) Survey. With respect to each parcel of Fee Property and Leased
Property constituting Collateral, a survey with such certification as the
Administrative Agent may reasonably require;
(r) Environmental Site Assessment. With respect to each parcel of Fee
Property and Leased Property constituting Collateral, a Phase I and/or
Phase II Environmental Site Assessment to the extent requested by the
Administrative Agent;
(s) Merger Agreement. Evidence satisfactory to the Administrative
Agent that all conditions precedent to the closing of the Pillowtex Merger
have been satisfied, including without limitation (i) certified executed
copies of the Merger Agreement, and (ii) the Certificate of Merger issued
by the Secretary of State of the appropriate state or states;
TERM LOAN AGREEMENT - Page 17
(t) Intercreditor Agreement. The Intercreditor Agreement executed by
the Borrower, the Guarantors, the Administrative Agent, the Revolving
Lenders, and Congress Financial Corporation as administrative agent under
the Revolving Credit Agreement;
(u) Revolving Loan Documents. Fully executed counterparts of the
Revolving Credit Agreement and other loan documents evidencing or executed
and delivered in connection with the Revolving Credit Agreement;
(v) Opinion of Counsel. A favorable opinion of legal counsel to the
Borrower and the Guarantors as to such matters as the Administrative Agent
may reasonably request;
(w) Plan of Reorganization. The Plan of Reorganization shall have
been confirmed and shall have become effective;
(x) Administrative Agent's Fee. The initial annual administration fee
described in Section 3.4 shall have been paid in full by the Borrower;
(y) Attorneys' Fees and Expenses. Evidence that the costs and
expenses (including reasonable attorneys' fees) referred to in Section
13.1, to the extent incurred, shall have been paid in full by the Borrower;
(z) No Default. No Default shall have occurred and be continuing, or
would result from the Term Loan;
(aa) Representations and Warranties. All of the representations and
warranties contained in Article VII hereof and in the other Loan Documents
shall be true and correct; and
(bb) Additional Documentation. The Administrative Agent shall have
received such additional approvals, opinions, or documents as the
Administrative Agent or its legal counsel, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.,
may reasonably request.
ARTICLE VII
Representations and Warranties
To induce the Lenders to enter into this Agreement, the Borrower represents
and warrants to the Administrative Agent and the Lenders that:
Section 7.1 Corporate Existence. The Borrower and each of the Guarantors
(a) is a corporation or other Person duly organized and validly existing under
the laws of the jurisdiction of its organization, (b) has full legal power and
authority and possesses all governmental franchises, licenses, permits,
authorizations and approvals necessary to enable it to use its corporate name
and to own, lease or otherwise hold its properties and assets and to carry on
its business as now conducted other than such franchises, licenses, permits,
authorizations and approvals the lack of which, individually or in the
aggregate, would not have a Material Adverse
TERM LOAN AGREEMENT - Page 18
Effect, (c) is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership, leasing or
holding of its properties makes such qualification necessary, except such
jurisdictions where the failure so to qualify would not have a Material Adverse
Effect, and (d) is in compliance with all applicable statutes, laws, ordinances,
rules, orders and regulations of any Governmental Authority or instrumentality,
domestic or foreign, except where noncompliance would not have a Material
Adverse Effect. Neither the Borrower nor any of its Subsidiaries has received
any written communication from a Governmental Authority that alleges that the
Borrower or any of the Borrower's Subsidiaries is not in compliance, in all
material respects, with all material Federal, state, local or foreign laws,
ordinances, rules and regulations.
Section 7.2 Financial Condition. The audited consolidated financial
statements of the Borrower and its Subsidiaries for the fiscal year ended on or
about December 31, 2001, the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at March 30, 2002 and the related unaudited
consolidated statements of income and of cash flows for the periods ended on
such date, certified by the chief financial officer or controller of the
Borrower, copies of which have heretofore been furnished to each Lender, present
fairly the consolidated financial condition of the Borrower and its Subsidiaries
as of the respective dates indicated therein, and the consolidated results of
their operations and their consolidated cash flows for the respective periods
indicated therein (subject to normal year-end audit adjustments in the case of
unaudited financial statements). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by such
accountants or such officer, as the case may be, and as disclosed therein).
Section 7.3 Corporate Action; No Breach. The execution, delivery, and
performance by (a) the Borrower of this Agreement and the other Loan Documents
to which the Borrower is or may become a party and (b) each Guarantor of the
Loan Documents to which such Guarantor is or may become a party and compliance
with the terms and provisions hereof and thereof have been duly authorized by
all requisite action on the part of the Borrower and such Guarantor and do not
and will not (i) violate or conflict with, or result in a breach of, or
constitute a default under, or require any consent under (A) the articles of
incorporation, bylaws or other organizational documents of the Borrower or such
Guarantor, (B) any applicable law, rule, or regulation or any order, writ,
injunction, or decree of any Governmental Authority or arbitrator, or (C) any
agreement or instrument to which the Borrower or such Guarantor is a party or by
which any of them or any of their property is bound or subject, or (ii) result
in the creation or imposition of any Lien (except as provided in Article V and
except Permitted Liens) upon any of the revenues or assets of the Borrower or
such Guarantor.
Section 7.4 Operation of Business. The Borrower and each of its
Subsidiaries possess all material licenses, permits, franchises, patents,
copyrights, trademarks, and tradenames, or rights thereto, necessary to conduct
their respective businesses substantially as now conducted and as presently
proposed to be conducted, except those, the failure of which would not have a
Material Adverse Effect, and the Borrower and each of its Subsidiaries are not
in violation of any valid rights of others with respect to any of the foregoing
that would result in a Material Adverse Effect.
TERM LOAN AGREEMENT - Page 19
Section 7.5 Litigation and Judgments. Except as disclosed on Schedule 7.5
hereto, and except for the Chapter 11 Cases and the filing and prosecution of
claims therein, there is no action, suit, investigation, or proceeding before or
by any Governmental Authority or arbitrator pending, or to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries, that would, if adversely determined, have a Material Adverse
Effect. There are no outstanding judgments against the Borrower or any of its
Subsidiaries.
Section 7.6 Rights in Properties; Liens. The Borrower and each Guarantor
has good title to all its material assets (other than real property or interests
in real property, or goods sold on a consignment basis), in each case free and
clear of all Liens of any nature whatsoever except Permitted Liens. With respect
to real property or interests in real property, each of the Borrowers has (i)
good and marketable fee title to all of its material owned real property, (each,
a "Fee Property"), and (ii) a valid leasehold interest in all of the material
real property leased by it (each, a "Leased Property"), each such Fee Property
and each such Leased Property being referred to individually as a "Company
Property" in this Section 7.6), in each case free and clear of all Liens,
easements, covenants, rights-of-way and other similar restrictions of any nature
whatsoever, except (A) Permitted Liens, (B) easements, covenants, rights-of-way
and other similar restrictions of record, (C) any conditions that may be shown
by a current, accurate survey or physical inspection of any Company Property
made prior to the date of this Agreement, (D) any immaterial condemnation or
eminent domain proceeding affecting any real property that does not prevent such
real property from being utilized by the Borrower or any of its Subsidiaries
substantially for the purposes for which it was being utilized prior to such
proceeding, and (E) (I) zoning, building and other similar restrictions, (II)
Liens that have been placed by any developer, landlord or other third party on
property over which the Borrower or any of its Subsidiaries have easement rights
or on any Leased Property and subordination or similar agreements relating
thereto, and (III) unrecorded easements, covenants, rights-of-way or other
similar restrictions, none of which items set forth in clauses (I), (II) and
(III), individually or in the aggregate, materially impair the continued use and
operation of the property to which they relate in the business of the Borrower
or any Subsidiary, as now conducted.
Section 7.7 Enforceability. This Agreement constitutes, and the other Loan
Documents to which the Borrower or any Guarantor is party, when delivered, shall
constitute legal, valid, and binding obligations of the Borrower or the
applicable Guarantor, as the case may be, enforceable against the Borrower or
the applicable Guarantor, as the case may be, in accordance with their
respective terms, except as limited by bankruptcy, insolvency, or other laws of
general application relating to the enforcement of creditors' rights.
Section 7.8 Approvals. Other than with respect to certain industrial
revenue bond financings, no authorization, approval, or consent of, and no
filing or registration with, any Governmental Authority or third party is or
will be necessary for the execution, delivery, or performance by the Borrower or
any Guarantor of this Agreement and the other Loan Documents to which the
Borrower or the applicable Guarantor, as the case may be, is or may become a
party or the validity or enforceability thereof, other than (i) those already
obtained, (ii) the filing of financing statements and other Loan Documents, and
(iii) those the failure to obtain would not have a Material Adverse Effect.
TERM LOAN AGREEMENT - Page 20
Section 7.9 Debt. The Borrower and its Subsidiaries have no Debt other than
that permitted under this Agreement, except as disclosed on Schedule 7.9 hereto.
Section 7.10 Taxes. Except for those tax claims being addressed in the
Chapter 11 Cases, the Borrower and each of its Subsidiaries have filed all tax
returns (federal, state, and local) required to be filed, including all income,
franchise, employment, property, and sales tax returns, and have paid all of
their respective liabilities for taxes, assessments, governmental charges, and
other levies that are due and payable (other than (i) for which an extension for
filing is available and the Borrower or the applicable Subsidiary has taken
necessary steps to qualify for such extension, and (ii) the amount or validity
of which is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided on
the books of the Borrower or its Subsidiaries, as applicable). The Borrower
knows of no pending investigation of the Borrower or any of its Subsidiaries by
any taxing authority or of any pending but unassessed tax liability as a result
of any investigation by a taxing authority of the Borrower or any of its
Subsidiaries, except as disclosed on Schedule 7.10.
Section 7.11 Use of Proceeds; Margin Securities. Neither the 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 margin stock (within the meaning of Regulations U or X of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of the
Term Loan will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying margin stock.
Section 7.12 ERISA. The Borrower and each of its Subsidiaries are in
compliance in all material respects with all applicable provisions of ERISA.
Other than the event that occurred as a result of the Chapter 11 Cases and the
event that could occur as a result of a decrease in the number of participants
covered by the Plans, neither a Reportable Event nor a Prohibited Transaction
has occurred and is continuing with respect to any Plan. No notice of intent to
terminate a Plan has been filed, nor has any Plan been terminated. To the
Borrower's knowledge, no circumstances exist which constitute grounds entitling
the PBGC to institute proceedings to terminate, or appoint a trustee to
administer, a Plan, nor has the PBGC instituted any such proceedings. Neither
the Borrower nor any ERISA Affiliate has completely or partially withdrawn from
a Multiemployer Plan. The Borrower and each ERISA Affiliate have met their
minimum funding requirements under ERISA with respect to all of their Plans.
Section 7.13 Disclosure. No statement, information, report, representation,
or warranty made by the Borrower in this Agreement or in any other Loan Document
or furnished to the Lenders in connection with this Agreement or any of the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state any material fact necessary to make the statements herein
or therein not misleading. There is no fact known to the Borrower which could
reasonably be expected to have a Material Adverse Effect that has not been
disclosed in writing to the Lenders.
Section 7.14 Subsidiaries. The Borrower has no Subsidiaries other than
those listed on Schedule 7.14 hereto, and Schedule 7.14 sets forth the
jurisdiction of organization of each Subsidiary of Borrower and the percentage
of the Borrower's or applicable Subsidiary's
TERM LOAN AGREEMENT - Page 21
ownership of the outstanding voting stock of each Subsidiary. All of the
outstanding capital stock of each Subsidiary of Borrower has been validly
issued, is fully paid, and is nonassessable.
Section 7.15 Agreements. Other than with respect to certain cotton
contracts, neither the Borrower nor any of its Subsidiaries is a party to any
indenture, loan, or credit agreement, or to any lease or other agreement or
instrument, or subject to any charter or corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries is in default in any respect in the performance,
observance, or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument material to its business to which it is
a party, the result of which would be a Material Adverse Effect.
Section 7.16 Compliance with Laws. Neither the Borrower nor any of its
Subsidiaries is in violation in any material respect of any law, rule,
regulation, order, or decree of any Governmental Authority or arbitrator.
Section 7.17 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 7.18 Public Utility Holding Company Act. Neither the Borrower nor
any of its Subsidiaries is a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or a "public utility"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
Section 7.19 Environmental Matters. Except as disclosed in Schedule 7.19,
and subject to clause (f) below:
(a) To the best knowledge of the Borrower after reasonable
inquiry, (i) the Fee Properties do not contain, in, on or under,
including, without limitation, the soil and groundwater under the Fee
Properties, any Hazardous Materials, and (ii) neither the Borrower nor
any of its Subsidiaries have placed any Hazardous Materials on any Leased
Properties, in each case which result in a currently existing violation
of Environmental Laws.
(b) To the best knowledge of the Borrower after reasonable
inquiry, the Borrower and its Subsidiaries are not in material violation
of any Environmental Law which could materially interfere with the
continued operation of any of the Company Properties or materially impair
the fair saleable value of any thereof.
(c) Neither the Borrower nor any of its Subsidiaries have
received any complaint, notice of violation, alleged violation, notice of
investigation or of potential liability under Environmental Laws with
regard to any of the Company Properties which has not been cured or is in
the process of being cured and has been disclosed in writing by the
Borrower to the Administrative Agent, nor do the Borrower or any of its
Subsidiaries have knowledge that any Governmental Authority is
contemplating delivering to the Borrower or any of its Subsidiaries any
such notice.
TERM LOAN AGREEMENT - Page 22
(d) Except for violations which have been cured or are in the
process of being cured and have been disclosed in writing by the Borrower
to the Administrative Agent, to the best knowledge of the Borrower after
reasonable inquiry, Hazardous Materials have not been generated, treated,
stored, disposed of (in the case of Leased Properties, by the Borrower or
any of its Subsidiaries), at, on or under any of the Company Properties
in violation of any Environmental Laws nor, to the best knowledge of the
Borrower after reasonable inquiry, have any Hazardous Materials been
transported (in the case of Leased Properties, by the Borrower or any of
its Subsidiaries) from any of the Company Properties to any other
location in violation of any Environmental Laws.
(e) There are no governmental administrative actions or judicial
proceedings pending under any Environmental Law to which Borrower or any
of its Subsidiaries thereof is a party with respect to any of the Company
Properties, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding against Borrower or any of its
Subsidiaries thereof under any Environmental Law with respect to any of
the Company Properties.
(f) Each of the representations and warranties set forth in
paragraphs (a) through (e) of this Section 7.19 is true and correct in
all material respects with respect to each parcel of Company Property.
Section 7.20 No Change. Except as set forth in the Plan of
Reorganization, since March 30, 2002 (a) other than as otherwise disclosed in
the financial statements previously provided to the Lenders, there has been no
change, which has had or could reasonably be expected to have a Material Adverse
Effect and (b) no dividends or other distributions have been declared, paid or
made upon the capital stock of the Borrower or any of its Subsidiaries nor has
any of the capital stock of the Borrower or any of its Subsidiaries been
redeemed, retired, purchased or otherwise acquired for value by the Borrower or
any of its Subsidiaries.
Section 7.21 Patents, Copyrights, Permits, Trademarks and Licenses.
Schedule 7.21 sets forth a true and complete list of all material patents,
trademarks (registered or unregistered), trade names, service marks and
copyrights and applications therefor owned, used or filed by or licensed to the
Borrower and its Subsidiaries and, with respect to such material registered
trademarks, contains a list of all jurisdictions in which such trademarks are
registered or applied for and all registration and application numbers. Except
as disclosed on Schedule 7.21, the Borrower and its Subsidiaries own or have the
right to use the patents, trademarks (registered or unregistered), trade names,
service marks, copyrights and applications therefor referred to in such
Schedule. To the best knowledge of the Borrower after reasonable inquiry, no
material claims are pending by any Person with respect to the ownership,
validity, enforceability or use of any such patents, trademarks (registered or
unregistered), trade names, service marks, copyrights, or applications therefor,
challenging or questioning the validity or effectiveness of any of the
foregoing, in any domestic jurisdiction.
TERM LOAN AGREEMENT - Page 23
ARTICLE VIII
Affirmative Covenants
The Borrower covenants and agrees that, as long as the Obligations or any
part thereof are outstanding, the Borrower will perform and observe the
following positive covenants, unless the Required Lenders shall otherwise
consent in writing:
Section 8.1 Reporting Requirements. The Borrower will furnish to the
Administrative Agent for distribution to the Lenders:
(a) Annual Financial Statements. As soon as practical, but in
any event within 90 days after the end of each fiscal year of the
Borrower, the audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related audited
consolidated statements of stockholders' equity, cash flows and income of
the Borrower and its Subsidiaries for such fiscal year, setting forth in
each case in comparative form the figures for the previous year,
certified by independent certified public accountants reasonably
acceptable to the Administrative Agent (it being hereby agreed that KPMG
is acceptable to the Administrative Agent), accompanied by the opinion of
such independent certified public accountants, which opinion shall be in
scope and substance in accordance with generally accepted auditing
standards and shall be unqualified.
(b) Quarterly Financial Statements. As soon as practical, but in
any event not later than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such quarter and the related unaudited consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for such
quarterly period and the portion of the fiscal year of the Borrower and
its Subsidiaries through such date subject only to usual year-end
adjustments and the absence of footnotes, setting forth in each case in
comparative form the figures for the corresponding quarter in, and year
to date portion of, the previous year, certified by the chief financial
officer, controller or treasurer of the Borrower as being fairly stated
in all material respects.
(c) Monthly Financial Statements. As soon as practical, but in
any event within 20 Business Days after the end of each fiscal month of
each year, other than the last fiscal month of each fiscal quarter,
commencing as of the fiscal month ending on or about May 31, 2002, the
internal monthly financial statements comprising the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such month and the related unaudited consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for such month
and for the portion of the fiscal year of the Borrower and its
Subsidiaries through such date, in comparative form the consolidated
figures for the corresponding month of, and year to date portion of, the
previous year, certified by the chief financial officer, controller or
treasurer of the Borrower as being fairly stated in all material
respects.
TERM LOAN AGREEMENT - Page 24
(d) Monthly Cotton Purchase Information. As soon as practical,
but in any event within 20 Business Days after the end of each fiscal
month of each year, commencing as of the fiscal month ending on or about
June 30, 2002, a report detailing the amount of cotton purchased during
such fiscal month and the aggregate notional amount of forward purchase
contracts for cotton outstanding as of the last day of such fiscal month.
(e) Monthly Capital Lease and Letter of Credit Information. As
soon as practical, but in any event within 20 Business Days after the end
of each fiscal month of each year, other than the last fiscal month of
each fiscal quarter, and in any event within 45 days after the end of the
last month of each fiscal quarter, commencing as of the fiscal month
ending on or about June 30, 2002, a report detailing (a) the amount of
Capital Lease Obligations outstanding as of the end of such fiscal month,
including the names of each lessor, the amount outstanding under each
capital lease, and the term of each capital lease, and (b) the amount
available to be drawn under commercial letters of credit outstanding
under the Revolving Credit Agreement, including the beneficiary of each
such letter of credit and the term of each such letter of credit.
(f) Certificates of No Default. Concurrently with the delivery
of the consolidated financial statements referred to in Section 8.1(a), a
letter from the Borrower's independent certified public accountants
reporting on such financial statements stating that in making the
examination necessary to express their opinion on such financial
statements no knowledge was obtained of any Default, except as specified
in such letter, and concurrently with each delivery of the financial
statements referred to in Sections 8.1(a), (b) and (c), a certificate of
the vice president and controller, the vice president and treasurer or
the chief financial officer of the Borrower stating that, to the best of
such officer's knowledge after reasonable inquiry and review, the
Borrower and its Subsidiaries have observed or performed all of their
covenants and other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to be observed, performed
or satisfied by them, and that such officer has obtained no knowledge of
any Default except as specified in such certificate.
(g) Accountant Reports. Promptly upon receipt thereof, copies of
all final reports submitted to the Borrower or to any of its Subsidiaries
by the Borrower's independent certified public accountants in connection
with each annual, interim or special audit of the books of the Borrower
or its Subsidiaries made by such accountants, including, without
limitation, any final comment letter submitted by such accountants to
management in connection with their annual audit.
(h) Public Reports. Promptly upon their becoming available,
copies of all financial statements, reports, notices and proxy statements
sent or made available to the public generally by the Borrower and all
regular and periodic reports and all final registration statements and
final prospectuses, if any, filed by the Borrower with any securities
exchange or with the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its functions.
TERM LOAN AGREEMENT - Page 25
(i) Notice of Litigation. Promptly after the commencement
thereof, notice of all actions, suits, and proceedings before any
Governmental Authority or arbitrator affecting the Borrower or any of its
Subsidiaries which, if determined adversely to the Borrower or such
Subsidiary, could reasonably be expected to have a Material Adverse
Effect.
(j) Notice of Default. As soon as possible and in any event
within five (5) Business Days after the occurrence of each Default of
which Borrower has knowledge, a written notice setting forth the details
of such Default and the action that the Borrower has taken and proposes
to take with respect thereto.
(k) ERISA Reports. Promptly after the filing or receipt thereof,
copies of all reports, including annual reports, and notices which the
Borrower or any of its Subsidiaries files with or receives from the PBGC
or the U.S. Department of Labor under ERISA; and as soon as possible and
in any event within five (5) Business Days after the Borrower or any of
its Subsidiaries knows or has reason to know that any Reportable Event or
Prohibited Transaction has occurred with respect to any Plan or that the
PBGC or the Borrower or any of its Subsidiaries has instituted or will
institute proceedings under Title IV of ERISA to terminate any Plan, a
certificate of the chief financial officer, controller or treasurer of
the Borrower setting forth the details as to such Reportable Event or
Prohibited Transaction or Plan termination and the action that the
Borrower proposes to take with respect thereto.
(l) Reports to Other Creditors. Promptly after the furnishing
thereof, to the extent the Administrative Agent so requests, copies of
any statement or report furnished to any other party pursuant to the
terms of any indenture, loan, or credit or similar agreement, including
without limitation the Revolving Credit Agreement, and not otherwise
required to be furnished to the Lenders pursuant to any other clause of
this Section.
(m) Notice of Material Adverse Effect. As soon as possible and
in any event within five (5) Business Days after the occurrence thereof
which Borrower has knowledge, written notice of any matter that could
reasonably be expected to have a Material Adverse Effect.
(n) Landlord Waivers. Within 60 days after the date hereof, the
Borrower will use its best efforts to provide landlord lien waivers or
subordinations, as the case may be, with respect to each location of
equipment and inventory of Borrower and the Guarantors which is leased by
Borrower or any such Guarantor and for which a landlord lien waiver or
subordination is required by the Revolving Credit Agreement.
(o) General Information. Promptly, such other information
concerning the Borrower or any of its Subsidiaries as the Administrative
Agent or any Lender may from time to time reasonably request.
Section 8.2 Maintenance of Existence. Except as otherwise permitted
pursuant to Section 9.3, the Borrower will preserve and maintain, and will cause
each of its Subsidiaries to
TERM LOAN AGREEMENT - Page 26
preserve and maintain, its corporate existence and all of its leases,
privileges, licenses, permits, franchises, qualifications, and rights that are
necessary or desirable in the ordinary conduct of its business, the loss of
which would have a Material Adverse Effect.
Section 8.3 Maintenance of Properties. Except as otherwise permitted
pursuant to Sections 9.3 and 9.7, the Borrower will maintain, keep, and
preserve, and cause each of its Subsidiaries to maintain, keep, and preserve,
all of its properties (tangible and intangible) necessary or useful in the
proper conduct of its business in good working order and condition.
Section 8.4 Taxes and Claims. Except for tax claims being addressed in the
Chapter 11 Cases, the Borrower will pay or discharge, and will cause each of its
Subsidiaries to pay or discharge, at or before maturity or before becoming
delinquent (a) all taxes, levies, assessments, and governmental charges imposed
on it or its income or profits or any of its property, and (b) all lawful claims
for labor, material, and supplies, which, if unpaid, might become a Lien upon
any of its property; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any tax, levy, assessment, or
governmental charge which is being contested in good faith by appropriate
proceedings diligently pursued, and for which adequate reserves have been
established in accordance with GAAP.
Section 8.5 Insurance. The Borrower will maintain, and will cause each of
its Subsidiaries to maintain, insurance with financially sound and reputable
insurance companies in such amounts and covering such risks as is usually
carried by corporations engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower and its Subsidiaries
operate, provided that in any event the Borrower will maintain and cause each of
its Subsidiaries to maintain workmen's compensation insurance, property
insurance, comprehensive general liability insurance, products liability
insurance, and business interruption insurance reasonably satisfactory to the
Administrative Agent. Each insurance policy covering the Collateral shall name
the Administrative Agent as an additional loss payee and shall provide that such
policy will not be canceled or reduced without thirty (30) days' prior written
notice to the Administrative Agent.
Section 8.6 Inspection Rights. At any reasonable time and from time to
time, upon reasonable notice to the Borrower, the Borrower will permit, and will
cause each of its Subsidiaries to permit, representatives of the Administrative
Agent or any Lender to examine, copy, and make extracts from its books and
records, to visit and inspect its properties, and to discuss its business,
operations, and financial condition with its officers, employees, and
independent certified public accountants. In addition, the Borrower will permit,
and will cause each of its Subsidiaries to permit, representatives of the
Administrative Agent or any Lender to visit and inspect any of its properties
for the purpose of performing periodic collateral audits.
Section 8.7 Keeping Books and Records. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain, proper books of record and account
in which full, true, and correct entries in conformity with GAAP shall be made
of all dealings and transactions in relation to its business and activities.
Section 8.8 Compliance with Laws. The Borrower will comply, and will cause
each of its Subsidiaries to comply with all applicable laws, rules, regulations,
orders, and decrees of
TERM LOAN AGREEMENT - Page 27
any Governmental Authority or arbitrator, except to the extent that the failure
to comply therewith would not have a Material Adverse Effect.
Section 8.9 Compliance with Agreements. The Borrower will comply, and will
cause each of its Subsidiaries to comply with the Revolving Credit Agreement,
all agreements related thereto, and all other agreements, contracts, and
instruments binding on it or affecting its properties or business, except to the
extent that the failure to comply therewith would not have a Material Adverse
Effect.
Section 8.10 Further Assurances. The Borrower will, and will cause each of
its Subsidiaries to, execute and deliver such further agreements and instruments
and take such further action as may be reasonably requested by the
Administrative Agent to carry out the provisions and purposes of this Agreement
and the other Loan Documents and to create, preserve, and perfect the Liens of
the Administrative Agent in the Collateral.
Section 8.11 ERISA. The Borrower will comply, and will cause each of its
Subsidiaries to comply, with all minimum funding requirements, and all other
material requirements, of ERISA, if applicable, so as not to give rise to any
liability thereunder.
Section 8.12 Environmental Laws.
(a) The Borrower and its Subsidiaries will comply in all material
respects with, and use reasonable efforts to insure compliance in all
material respects by all its tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply in all material
respects with and maintain, and use reasonable efforts to insure that all
of their respective tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
registrations or permits required by Environmental Laws.
(b) The Borrower and its Subsidiaries will conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws and promptly comply
with all lawful orders and directives of all Governmental Authorities
respecting Environmental Laws, except to the extent that the same are being
contested in good faith by appropriate proceedings.
(c) THE BORROWER AND ITS SUBSIDIARIES WILL DEFEND, INDEMNIFY AND HOLD
HARMLESS ADMINISTRATIVE AGENT AND EACH LENDER, AND THEIR RESPECTIVE
EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS (COLLECTIVELY, THE "LENDER
PARTIES"), FROM AND AGAINST ANY CLAIMS, DEMANDS, PENALTIES, FINES,
LIABILITIES, SETTLEMENTS, DAMAGES, COSTS AND EXPENSES OF WHATEVER KIND OR
NATURE KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE (INCLUDING AS A RESULT OF
THE ORDINARY NEGLIGENCE OF ANY OF THE LENDER PARTIES) ACTUALLY ASSERTED
AGAINST OR INCURRED BY THE LENDER PARTIES (OR ANY ONE OR MORE OF THEM),
ARISING OUT OF, OR IN ANY WAY RELATING TO THE VIOLATION OF OR NONCOMPLIANCE
WITH ANY ENVIRONMENTAL LAWS APPLICABLE TO
TERM LOAN AGREEMENT - Page 28
THE REAL PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS
SUBSIDIARIES, OR ANY ORDERS, REQUIREMENTS OR DEMANDS OF GOVERNMENTAL
AUTHORITIES RELATED THERETO, INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEY'S AND CONSULTANT'S FEES, INVESTIGATION AND LABORATORY FEES, COURT
COSTS AND LITIGATION EXPENSES, EXCEPT TO THE EXTENT THAT ANY OF THE
FOREGOING ARISE OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
PARTY SEEKING INDEMNIFICATION THEREFOR OR RELATE TO VIOLATIONS OR ALLEGED
VIOLATIONS OF ENVIRONMENTAL LAWS OR HAZARDOUS MATERIALS FIRST USED,
RELEASED, SPILLED, EMITTED OR OTHERWISE LOCATED ON ANY REAL PROPERTY OWNED
OR OPERATED BY THE BORROWER ANY OF ITS SUBSIDIARIES AFTER SUCH PROPERTY IS
TRANSFERRED TO A LENDER PARTY OR ITS SUCCESSOR OR ASSIGN BY FORECLOSURE,
DEED-IN-LIEU OF FORECLOSURE OR SIMILAR TRANSFER UNLESS CAUSED BY THE
BORROWER ANY OF ITS SUBSIDIARIES.
ARTICLE IX
Negative Covenants
The Borrower covenants and agrees that, as long as the Obligations or any
part thereof are outstanding, the Borrower will perform and observe the
following negative covenants, unless the Required Lenders shall otherwise
consent in writing:
Section 9.1 Debt. The Borrower will not incur, create, assume, or permit to
exist, and will not permit any of its Subsidiaries to incur, create, assume, or
permit to exist, any Debt, except:
(a) The Obligations;
(b) Debt incurred under the Revolving Credit Agreement, and any
renewals, extensions, replacements or refinancings thereof (except those
that result in an increase to the original commitment amount thereunder);
provided that the aggregate amount available to be drawn under commercial
letters of credit issued for the account of the Borrower or any of its
Subsidiaries thereunder shall not exceed $15,000,000 at any time prior to
the Borrower's delivery to the Administrative Agent of a strategic plan
regarding usage of commercial letters of credit, which is satisfactory to
the Required Lenders;
(c) Subordinated Debt;
(d) Purchase money debt incurred after the date hereof in the ordinary
course of business not to exceed an aggregate amount of $5,000,000;
(e) Capital Lease Obligations incurred after the date hereof in the
ordinary course of business not to exceed an aggregate amount of
$5,000,000;
TERM LOAN AGREEMENT - Page 29
(f) Debt existing on the date hereof and Debt resulting from the
conversion or termination, within 30 days after the date hereof of any
operating leases existing on the date hereof, which is described on
Schedule 7.9 hereof, including renewals, extensions, replacements or
refinancings (but not increases) thereof, provided that the maximum amount
of Capital Lease Obligations included on such Schedule 7.9 (including any
Capital Lease Obligations resulting from the conversion or termination,
within 30 days after the date hereof, of any operating leases existing on
the date hereof included on such Schedule 7.9) shall not exceed
$40,000,000;
(g) Debt in respect of endorsement of negotiable instruments in the
ordinary course of business;
(h) Debt owing to the Borrower or any of the Guarantors by the
Borrower or any Guarantor;
(i) Guaranties by the Borrower or its Subsidiaries, to the extent the
underlying Debt is permitted hereunder;
(j) Debt associated with insurance premium financing;
(k) Debt consisting of interest rate hedging contracts for purposes of
fixing floating rate obligations under the Revolving Credit Agreement,
provided that the aggregate notional amount of all such arrangements and
contracts shall not exceed 50% of outstanding advances under the Revolving
Credit Agreement at the time the arrangement or contract is entered into;
(l) Debt consisting of foreign currency exchange hedging contracts
with terms of no longer than 180 days, provided that the aggregate notional
amount of all such contracts shall not exceed $5,000,000 at any time;
(m) Debt consisting of forward purchase contracts for cotton and
natural gas for amounts not exceeding 18 months of reasonably expected use;
and
(n) Debt associated with performance, surety and appeals bonds in the
ordinary course of business.
Section 9.2 Limitation on Liens. The Borrower will not incur, create,
assume, or permit to exist, and will not permit any of its Subsidiaries to
incur, create, assume, or permit to exist, any Lien upon any of its property,
assets, or revenues, whether now owned or hereafter acquired, except the
following (collectively, the "Permitted Liens"):
(a) Liens disclosed on Schedule 9.2 hereto and any replacements or
renewals thereof;
(b) Liens in favor of the Administrative Agent for the benefit of the
Lenders;
TERM LOAN AGREEMENT - Page 30
(c) First priority Liens on the Revolving Loan Assets and second
priority Liens on the Subject Assets granted pursuant to the Revolving
Credit Agreement, or any documents executed in connection therewith, and
any replacements or renewals thereof;
(d) Encumbrances consisting of minor easements, rights-of-way, zoning
restrictions, or other restrictions on the use of real property that do not
(individually or in the aggregate) materially affect the value of the
assets encumbered thereby or materially impair the ability of the Borrower
or its Subsidiaries to use such assets in their respective businesses, and
none of which is violated in any material respect by existing or proposed
structures or land use;
(e) Liens for taxes, assessments, or other governmental charges which
are not delinquent or which are being contested in good faith and for which
adequate reserves have been established;
(f) Liens of mechanics, materialmen, warehousemen, carriers, laborers,
landlords, or other similar Liens securing obligations that are not yet due
and are incurred in the ordinary course of business or by operation of law;
(g) Liens resulting from good faith deposits to secure payments of
workmen's compensation unemployment insurance, pensions or other social
security programs or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, or contracts (other than for
payment of Debt), or leases made in the ordinary course of business; and
(h) Liens securing Debt permitted by Section 9.1(d) or 9.1(e) hereof,
so long as such Liens cover only the assets being acquired with such Debt.
Section 9.3 Mergers, Etc. The Borrower will not, and will not permit any of
its Subsidiaries to, become a party to a merger or consolidation, or purchase or
otherwise acquire all or any part of the assets of any Person or any shares or
other evidence of beneficial ownership of any Person, or wind-up, dissolve, or
liquidate, except that (a) a Subsidiary of the Borrower may merge, consolidate,
dissolve, or liquidate into the Borrower or a Guarantor and (b) a Subsidiary of
the Borrower may dissolve if substantially all of its assets have been conveyed
pursuant to Section 9.7(d) hereof. It is understood and agreed that the
Pillowtex Merger will occur prior to or simultaneously with the effective date
of this Agreement.
Section 9.4 Restricted Payments. Borrower will not declare, and will not
permit any of its Subsidiaries to declare, any dividends on any shares of any
class of stock, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, retirement or
other acquisition of any shares of any class of stock, or any warrants or
options to purchase such stock, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Borrower or any of its
Subsidiaries; except that Guarantors may pay dividends to the Borrower or
another Guarantor.
Section 9.5 Loans and Investments. The Borrower will not make, and will not
permit any of its Subsidiaries to make, any advance, loan, extension of credit,
or capital contribution to
TERM LOAN AGREEMENT - Page 31
or investment in, or purchase, or permit any of its Subsidiaries to purchase,
any stock, bonds, notes, debentures, or other securities of any Person, except:
(a) any of the foregoing existing on the date hereof;
(b) the Borrower and its Subsidiaries may invest in, acquire and
hold cash and Cash Equivalents;
(c) investments arising from transactions by the Borrower or any of
its Subsidiaries with customers or suppliers in the ordinary course of
business, including endorsements of negotiable instruments, debt
obligations and other investments received in connection with the
bankruptcy or reorganization of customers and suppliers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers;
(d) the Borrower or any of its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms;
(e) Loans or advances to directors, officers and employees of the
Borrower or any of its Subsidiaries that do not exceed $1,000,000 in
aggregate amount outstanding at any time;
(f) Investments in Guarantors;
(g) Investments in the form of hedging agreements (permitted by
Section 9.1); and
(h) Investments in joint ventures, partnerships and other entities
engaged in the same line of business as the Borrower and its Subsidiaries,
which do not exceed $5,000,000 in the aggregate.
Section 9.6 Transactions With Affiliates. The Borrower will not, and will
not permit its Subsidiaries to, enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of property or the rendering
of any service, with any Affiliate except for transactions which are not
prohibited under this Agreement and which are in the ordinary course of the
Borrower's or applicable Subsidiary's business and which are upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than it
would obtain in a hypothetical comparable arm's length transaction with a Person
not an Affiliate.
Section 9.7 Disposition of Assets. The Borrower will not sell, lease,
assign, transfer, or otherwise dispose of any of its assets, or permit any of
its Subsidiaries to do so with any of its assets (including through a
transaction of merger or consolidation of any Subsidiary of the Borrower and
including, without limitation, tax benefits, receivables and leasehold
interests), whether now owned or hereafter acquired, except for (a) sales of
inventory made in the ordinary course of business; (b) sales of assets that are
obsolete, worn-out or are no longer in use and that are not material in value
nor significant to the continuation of Borrower's or the applicable Subsidiary's
business; (c) sales and dispositions from any of the Borrower's Subsidiaries to
the Borrower or any Guarantor; (d) sales, transfers or dispositions of any of
the Moveable Assets,
TERM LOAN AGREEMENT - Page 32
provided the Borrower gives notice thereof to the Administrative Agent and in
the case of any sale of such assets, the Net Cash Proceeds received therefrom by
the Borrower are used to prepay the Obligations in accordance with Section
3.3(a), (e) so long as an Event of Default has not occurred and is continuing,
sales of certain residential properties that comprise a portion of the property
encumbered by the Mortgages, provided that (i) Borrower or the applicable
Subsidiary obtains all governmental approvals in order to subdivide the
residential property from the remainder of the property, (ii) Borrower provides
Administrative Agent with ten (10) days' advance written notice of such
contemplated sale together with a release instrument in form and substance
reasonably satisfactory to Administrative Agent, (iii) the remainder of the
property shall continue to remain subject to the lien of the applicable
Mortgage, and (iv) the Net Cash Proceeds received from by the Borrower from such
sale are used to prepay the Obligations in accordance with Section 3.3(a), and
(f) asset sales from which the aggregate amount of Net Cash Proceeds never
exceeds $5,000,000, so long as such Net Cash Proceeds are used to prepay the
Obligations in accordance with Section 3.3(a). If any Moveable Assets are moved
to a jurisdiction outside of the United States of America, neither the
Administrative Agent nor any Lender will perfect or attempt to perfect a Lien on
such Moveable Assets under the laws of the applicable jurisdiction.
Section 9.8 Sale and Leaseback. The Borrower will not enter into, and will
not permit any of its Subsidiaries to enter into, any arrangement with any
Person pursuant to which it leases from such Person real or personal property
that has been or is to be sold or transferred, directly or indirectly, by it to
such Person, other than such arrangements the aggregate outstanding amount of
which do not exceed $5,000,000 at any one time.
Section 9.9 Prepayment of Debt. Subject to the Intercreditor Agreement, the
Borrower will not prepay, and will not permit any of its Subsidiaries to prepay,
any Debt, except the Obligations and the Debt incurred under the Revolving
Credit Agreement.
Section 9.10 Nature of Business. The Borrower will not, and will not permit
any of its Subsidiaries to, engage in any business other than the businesses in
which they are engaged as of the date hereof and activities reasonably related
thereto.
Section 9.11 Accounting. The Borrower will not, and will not permit any of
its Subsidiaries to, change its fiscal year or make any change (a) in accounting
treatment or reporting practices, except as required by GAAP and disclosed to
the Administrative Agent, or (b) in tax reporting treatment, except as required
by law and disclosed to the Administrative Agent.
ARTICLE X
Financial Covenants
The Borrower covenants and agrees that, as long as the Obligations or any
part thereof are outstanding, the following financial covenants will be observed
and performed, unless the Required Lenders shall otherwise consent in writing:
TERM LOAN AGREEMENT - Page 33
Section 10.1 Interest Coverage Ratio. The Borrower will not permit its
Interest Coverage Ratio, on a consolidated basis, at the end of the applicable
fiscal quarter of the Borrower described below to be less than the ratio set
forth opposite such fiscal quarter below:
--------------------------------------------------------------------------------
Fiscal Quarters Ending On or About: Ratio
----------------------------------- -----
--------------------------------------------------------------------------------
September 30, 2002 0.80 to 1.00
--------------------------------------------------------------------------------
December 31, 2002 1.25 to 1.00
--------------------------------------------------------------------------------
March 31, 2003 2.10 to 1.00
--------------------------------------------------------------------------------
June 30, 2003 through and including March 31, 2007 3.00 to 1.00
--------------------------------------------------------------------------------
Section 10.2 Leverage Ratio. The Borrower will not permit its Leverage
Ratio, on a consolidated basis, at the end of the applicable fiscal quarter of
the Borrower described below to be greater than the ratio set forth opposite
such fiscal quarter below:
--------------------------------------------------------------------------------
Fiscal Quarters Ending On or About: Ratio
----------------------------------- -----
--------------------------------------------------------------------------------
September 30, 2002 6.65 to 1.00
--------------------------------------------------------------------------------
December 31, 2002 5.20 to 1.00
--------------------------------------------------------------------------------
March 31, 2003 4.50 to 1.00
--------------------------------------------------------------------------------
June 30, 2003 3.70 to 1.00
--------------------------------------------------------------------------------
September 30, 2003 3.60 to 1.00
--------------------------------------------------------------------------------
December 31, 2003 3.10 to 1.00
--------------------------------------------------------------------------------
March 31, 2004 through and including March 31, 2007 3.00 to 1.00
--------------------------------------------------------------------------------
ARTICLE XI
Default
Section 11.1 Events of Default. Each of the following shall be deemed an
"Event of Default":
(a) The Borrower shall fail to pay when due the Obligations or any
part thereof.
(b) Any representation or warranty made or deemed made by the Borrower
or any Obligated Party (or any of their respective officers) in any Loan
Document or in any certificate, report, notice, or financial statement
furnished at any time in connection with this Agreement shall be false,
misleading, or erroneous in any material respect when made or deemed to
have been made.
(c) The Borrower or any Obligated Party shall fail to perform,
observe, or comply with any covenant, agreement, or term contained in
Section 8.1, Article IX or Article X of this Agreement.
TERM LOAN AGREEMENT - Page 34
(d) Any Obligated Party shall fail to perform, observe or comply with
any covenant, agreement, or term contained in this Agreement or any other
Loan Document not specifically referred to elsewhere in this Section 11.1
and such failure shall not be remedied within a period of 30 days after the
earlier of notice from the Administrative Agent or such time as the
Borrower or such Obligated Party reasonably should have known of the
occurrence thereof.
(e) Except for the Chapter 11 Cases, the Borrower, any of its
Subsidiaries, or any Obligated Party shall commence a voluntary proceeding
seeking liquidation, reorganization, or other relief with respect to itself
or its debts under any bankruptcy, insolvency, or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official of it or a substantial
part of its property or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it or shall make a general
assignment for the benefit of creditors or shall generally fail to pay its
debts as they become due or shall take any corporate action to authorize
any of the foregoing.
(f) An involuntary proceeding shall be commenced against the Borrower,
any of its Subsidiaries, or any Obligated Party seeking liquidation,
reorganization, or other relief with respect to it or its debts under any
bankruptcy, insolvency, or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian, or
other similar official for it or a substantial part of its property, and
such involuntary proceeding shall remain undismissed and unstayed for a
period of 60 days.
(g) One or more final judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $1,000,000 or more,
and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days after the entry of such
judgment.
(h) The Borrower, any of its Subsidiaries, or any Obligated Party
shall fail to pay when due (beyond any grace period provided with respect
thereto) any principal of or interest on any Debt (other than the
Obligations) in excess of $1,000,000, or the maturity of any such Debt
shall have been accelerated, or any such Debt shall have been required to
be prepaid prior to the stated maturity thereof, or any event shall have
occurred that permits (or, with the giving of notice or lapse of time or
both, would permit) any holder or holders of such Debt or any Person acting
on behalf of such holder or holders to accelerate the maturity thereof or
require any such prepayment and such event has not been waived or cured.
(i) This Agreement or any other Loan Document shall cease to be in
full force and effect or shall be declared null and void or the validity or
enforceability thereof shall be contested or challenged by the Borrower,
any Subsidiary, any Obligated Party or any of their respective
shareholders, or the Borrower or any Obligated Party shall deny that it has
any further liability or obligation under any of the Loan Documents, or any
lien or security interest created by the Loan Documents shall for any
reason cease to be a
TERM LOAN AGREEMENT - Page 35
valid, perfected security interest in and lien upon any of the Collateral
purported to be covered thereby, other than (A) as a result of an action or
inaction by the Administrative Agent, any Lender or any representative
thereof, or (B) as expressly provided or permitted in the Loan Documents.
(j) Any of the following events shall occur or exist with respect to
the Borrower or any ERISA Affiliate: (i) any Prohibited Transaction
involving any Plan; (ii) any Reportable Event with respect to any Plan;
(iii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan; (iv) any event or
circumstance that might constitute grounds entitling the PBGC to institute
proceedings under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any Plan, or the institution by the
PBGC of any such proceedings; or (v) complete or partial withdrawal under
Section 4201 or 4204 of ERISA from a Multiemployer Plan or the
reorganization, insolvency, or termination of any Multiemployer Plan; and
in each case above, such event or condition, together with all other events
or conditions, if any, have subjected or could in the reasonable opinion of
the Administrative Agent subject the Borrower to any tax, penalty, or other
liability to a Plan, a Multiemployer Plan, the PBGC, or otherwise (or any
combination thereof) which in the aggregate exceed or could reasonably be
expected to exceed $500,000.
(k) An event of default shall occur under the Revolving Credit
Agreement or any document, agreement or instrument executed and delivered
in connection therewith which has not been waived or cured.
(l) The Borrower, any of its Subsidiaries, or any Obligated Party, or
any of their properties, revenues, or assets, shall become subject to an
order of forfeiture, seizure, or divestiture (whether under RICO or
otherwise) and the same shall not have been discharged within thirty (30)
days from the date of entry thereof.
Section 11.2 Remedies Upon Default. If any Event of Default shall occur and
be continuing, subject to the Intercreditor Agreement, with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, without the necessity of
notice, (a) declare the Obligations or any part thereof to be immediately due
and payable, and the same shall thereupon become immediately due and payable,
without notice, demand, presentment, notice of dishonor, notice of acceleration,
notice of intent to accelerate, notice of intent to demand, protest, or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that upon the occurrence of an Event of Default
under Section 11.1(e) or Section 11.1(f), the Obligations shall become
immediately due and payable without notice, demand, presentment, notice of
dishonor, notice of acceleration, notice of intent to accelerate, notice of
intent to demand, protest, or other formalities of any kind, all of which are
hereby expressly waived by the Borrower, (b) foreclose or otherwise enforce any
Lien granted to the Administrative Agent for the benefit of the Lenders to
secure payment and performance of the Obligations in accordance with the terms
of the Loan Documents, or (c) exercise all rights and remedies available to it
in law or in equity, under the Loan Documents, or otherwise.
TERM LOAN AGREEMENT - Page 36
ARTICLE XII
The Administrative Agent
Section 12.1 Appointment, Powers and Immunities. In order to expedite the
various transactions contemplated by this Agreement, the Lenders hereby
irrevocably appoint and authorize the Administrative Agent to act as their agent
hereunder and under each of the other Loan Documents. The Administrative Agent
consents to such appointment and agrees to perform the duties of the
Administrative Agent as specified herein. The Lenders authorize and direct the
Administrative Agent to take such action in their name and on their behalf under
the terms and provisions of the Loan Documents and to exercise such rights and
powers thereunder as are specifically delegated to or required of the
Administrative Agent for the Lenders, together with such rights and powers as
are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized to act as the Administrative Agent on behalf of the Lenders:
(a) To receive on behalf of each of the Lenders and the
Administrative Agent any payment of principal, interest, fees or other
amounts paid pursuant to this Agreement and the Term Loan Notes and to
distribute to each Lender and the Administrative Agent, or any or some of
them its share of all payments so received as provided in this Agreement;
(b) To receive all documents and items to be furnished under the
Loan Documents;
(c) To act as nominee for and on behalf of the Lenders and the
Administrative Agent in and under the Loan Documents;
(d) To arrange for the means whereby the funds of the Lenders
are to be made available to the Borrower;
(e) To distribute to the Lenders information, requests, notices,
payments, prepayments, documents and other items received from the
Borrower, the other Obligated Parties, and other Persons;
(f) To execute and deliver to the Borrower, the other Obligated
Parties, and other Persons, all requests, demands, approvals, notices,
and consents received from the Lenders;
(g) To the extent permitted by the Loan Documents, to exercise
on behalf of each Lender all rights and remedies of such Lender upon the
occurrence of any Event of Default;
(h) To enter into the Intercreditor Agreement;
(i) To accept, execute, and deliver any security documents as
the secured party, including, without limitation all financing
statements; and
(j) To take such other actions as may be requested by Required
Lenders.
TERM LOAN AGREEMENT - Page 37
Neither the Administrative Agent nor any of its Affiliates, officers,
directors, employees, attorneys, financial advisors or agents shall be liable
for any action taken or omitted to be taken by any of them hereunder or
otherwise in connection with this Agreement or any of the other Loan Documents
except for its or their own gross negligence or willful misconduct. Without
limiting the generality of the preceding sentence, the Administrative Agent (i)
may treat the payee of any Term Loan Note as the holder thereof until the
Administrative Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to the Administrative
Agent; (ii) shall have no duties or responsibilities except those expressly set
forth in this Agreement and the other Loan Documents, and shall not by reason of
this Agreement or any other Loan Document be a trustee or fiduciary for any
Lender; (iii) shall not be required to initiate any litigation or collection
proceedings hereunder or under any other Loan Document except to the extent
requested by the Required Lenders; (iv) shall not be responsible to the Lenders
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or any certificate or other document
referred to or provided for in, or received by any of them under, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
enforceability, or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by any Person to perform any of its obligations hereunder or thereunder;
(v) may consult with legal counsel (including counsel for the Borrower),
independent public accountants, and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants, or experts; and (vi)
shall incur no liability under or in respect of any Loan Document by acting upon
any notice, consent, certificate, or other instrument or writing believed by it
to be genuine and signed or sent by the proper party or parties. As to any
matters not expressly provided for by this Agreement, the Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with instructions signed by the Required Lenders, and
such instructions of the Required Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders; provided, however, that
the Administrative Agent shall not be required to take any action which exposes
the Administrative Agent to personal liability or which is contrary to this
Agreement or any other Loan Document or applicable law.
Section 12.2 Rights of Administrative Agent as a Lender. With respect to
its commitment to lend hereunder and the Term Loan Note issued to it, the
Administrative Agent in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent and
its Affiliates may (without having to account therefor to any Lenders) accept
deposits from, lend money to, act as trustee under indentures of, provide
merchant banking services to, and generally engage in any kind of business with
the Borrower, any of its Subsidiaries, any other Obligated Party, and any other
Person who may do business with or own securities of the Borrower, any
Subsidiary, or any other Obligated Party, all as if it were not acting as the
Administrative Agent and without any duty to account therefor to the Lenders.
Section 12.3 Sharing of Payments, Etc. If any Lender shall obtain any
payment of any principal of or interest on the Term Loan or payment of any other
obligation under the Loan Documents then owed by the Borrower or any other
Obligated Party to such Lender, whether
TERM LOAN AGREEMENT - Page 38
voluntary, involuntary, through the exercise of any right of setoff, banker's
lien, counterclaim or similar right, or otherwise, in excess of its pro rata
share, such Lender shall promptly purchase from the other Lenders participations
in the portion of the Term Loan held by them hereunder in such amounts, and make
such other adjustments from time to time as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of the other
Lenders in accordance with its pro rata portion thereof. To such end, all of the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if all or any portion of such excess payment
is thereafter rescinded or must otherwise be restored. The Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
Lender so purchasing such participation may exercise all rights of setoff,
banker's lien, counterclaim, or similar rights with respect to such
participation as fully as if such Lender were a direct holder of the amount of
such participation. Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
Section 12.4 Indemnification. THE LENDERS HEREBY SEVERALLY AGREE TO
INDEMNIFY THE ADMINISTRATIVE AGENT FROM AND HOLD THE ADMINISTRATIVE AGENT
HARMLESS AGAINST (TO THE EXTENT NOT REIMBURSED UNDER SECTIONS 13.1 AND 13.2, BUT
WITHOUT LIMITING THE OBLIGATIONS OF THE BORROWER UNDER SECTIONS 13.1 AND 13.2),
RATABLY IN ACCORDANCE WITH THEIR RESPECTIVE PERCENTAGES, ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED
BY, OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT IN ANY WAY RELATING TO OR
ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED TO BE
TAKEN BY THE ADMINISTRATIVE AGENT UNDER OR IN RESPECT OF ANY OF THE LOAN
DOCUMENTS; PROVIDED, THAT NO LENDER SHALL BE LIABLE FOR ANY PORTION OF THE
FOREGOING TO THE EXTENT CAUSED BY THE ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. WITHOUT LIMITATION OF THE FOREGOING, IT IS THE EXPRESS
INTENTION OF THE LENDERS THAT THE ADMINISTRATIVE AGENT SHALL BE INDEMNIFIED
HEREUNDER FROM AND HELD HARMLESS AGAINST ALL OF SUCH LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS,
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), AND DISBURSEMENTS OF ANY KIND
OR NATURE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RESULTING FROM THE SOLE OR
CONTRIBUTORY NEGLIGENCE OF THE ADMINISTRATIVE AGENT. WITHOUT LIMITING ANY OTHER
PROVISION OF THIS SECTION, EACH LENDER AGREES TO REIMBURSE THE ADMINISTRATIVE
AGENT PROMPTLY UPON DEMAND FOR ITS PERCENTAGE OF ANY AND ALL OUT-OF-POCKET
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED BY THE ADMINISTRATIVE
AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION,
MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGAL
PROCEEDINGS, OR OTHERWISE) OF, OR LEGAL
TERM LOAN AGREEMENT - Page 39
ADVICE IN RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, THE LOAN DOCUMENTS, TO
THE EXTENT THAT THE ADMINISTRATIVE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY
THE BORROWER.
Section 12.5 Independent Credit Decisions. Each Lender agrees that it has
independently and without reliance on the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and the Obligated
Parties and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Administrative Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower or any Obligated
Party of this Agreement or any other Loan Document or to inspect the properties
or books of the Borrower or any Obligated Party. Except for notices, reports and
other documents and information expressly required to be furnished to the
Lenders by the Administrative Agent hereunder or under the other Loan Documents,
the Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other financial information concerning the
affairs, financial condition or business of the Borrower or any Obligated Party
(or any of their Affiliates) which may come into the possession of the
Administrative Agent or any of its Affiliates.
Section 12.6 Several Commitments. The commitments to lend and other
obligations of the Lenders under this Agreement are several. No Lender shall be
responsible for any act or omission of any other Lender.
Section 12.7 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders, and the
Required Lenders may remove the Administrative Agent upon notice to the
Administrative Agent. If the Administrative Agent shall resign as Administrative
Agent under the Loan Documents or be removed by the Required Lenders, then the
Required Lenders shall appoint from among the Lenders a successor agent to the
Administrative Agent for the Lenders which successor agent shall be approved by
the Borrower, which shall not unreasonably withhold its approval and shall not
be required during the existence of any Default hereunder, whereupon such
successor agent shall succeed to the rights, powers and duties of the resigning
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent effective upon its appointment, and the former Administrative
Agent's rights, powers and duties as the Administrative Agent shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement. After the retiring
Administrative Agent's resignation hereunder as Agent the provisions of this
Article XII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan Documents.
TERM LOAN AGREEMENT - Page 40
ARTICLE XIII
Miscellaneous
Section 13.1 Expenses. The Borrower hereby agrees to pay on demand: (a)
all out-of-pocket costs and expenses of the Administrative Agent in connection
with the preparation, negotiation, execution, and delivery of this Agreement and
the other Loan Documents and any and all amendments, modifications, renewals,
extensions, and supplements thereof and thereto, including, without limitation,
the reasonable fees and expenses of legal counsel for the Administrative Agent,
(b) all reasonable out-of-pocket costs and expenses of the Administrative Agent
and each Lender in connection with any Default and the enforcement of this
Agreement or any other Loan Document, including, without limitation, the
reasonable out-of-pocket fees and expenses of legal counsel for the
Administrative Agent and each Lender, (c) all transfer, stamp, documentary, or
other similar taxes, assessments, or charges levied by any Governmental
Authority in respect of this Agreement or any of the other Loan Documents, (d)
all reasonable out-of-pocket costs, expenses, assessments, and other charges
incurred in connection with any filing, registration, recording, or perfection
of any security interest or Lien contemplated by this Agreement or any other
Loan Document, and (e) all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent in connection with this Agreement or any
other Loan Document, including, without limitation, all reasonable costs,
expenses, and other charges incurred in connection with obtaining any mortgagee
title insurance policy, survey, audit, or appraisal in respect of the
Collateral.
Section 13.2 INDEMNIFICATION. EXCEPT FOR ACTS OR OMISSIONS CONSTITUTING
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION, THE BORROWER SHALL INDEMNIFY THE ADMINISTRATIVE AGENT AND THE
LENDERS AND EACH OF THEIR RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS FROM, AND HOLD EACH OF THEM HARMLESS
AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
DISBURSEMENTS, REASONABLE COSTS, AND EXPENSES (INCLUDING ATTORNEYS' FEES) TO
WHICH ANY OF THEM MAY BECOME SUBJECT (INCLUDING AS A RESULT OF THE ORDINARY
NEGLIGENCE OF ANY OF THEM) WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO
(A) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR
ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (B) ANY OF THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS, (C) ANY BREACH BY THE BORROWER OR ANY
SUBSIDIARY OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT
CONTAINED IN ANY OF THE LOAN DOCUMENTS, OR (D) ANY INVESTIGATION, LITIGATION, OR
OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION,
LITIGATION, OR OTHER PROCEEDING, RELATING TO ANY OF THE FOREGOING.
Section 13.3 Limitation of Liability. Neither the Administrative Agent
nor any of the Lenders nor any Affiliate, officer, director, employee, attorney,
or agent of the Administrative Agent or any of the Lenders shall have any
liability with respect to, and the Borrower hereby
TERM LOAN AGREEMENT - Page 41
waives, releases, and agrees not to ▇▇▇ any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by
the Borrower in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. The Borrower
hereby waives, releases, and agrees not to ▇▇▇ the Administrative Agent or the
Lenders or any of such Person's Affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement or any of the
other Loan Documents, or any of the transactions contemplated by this Agreement
or any of the other Loan Documents. Nothing contained in this Section shall
affect the rights of the Borrower to collect actual damages awarded to them
against any of the Administrative Agent, the Lenders or any Affiliate of any of
the foregoing Persons.
Section 13.4 No Duty. All attorneys, accountants, appraisers, and other
professional Persons and consultants retained by the Administrative Agent or any
of the Lenders shall have the right to act exclusively in the interest of such
Persons and shall have no duty of disclosure, duty of loyalty, duty of care, or
other duty or obligation of any type or nature whatsoever to the Borrower or any
other Person.
Section 13.5 Administrative Agent and Lenders Not Fiduciary. The
relationship between the Borrower, on one hand, and the Administrative Agent and
the Lenders, on the other hand, is solely that of debtor and creditor, and no
such Person has any fiduciary or other special relationship with the Borrower,
and no term or condition of any of the Loan Documents shall be construed so as
to deem the relationship between the Borrower and such Persons to be other than
that of debtor and creditor
Section 13.6 Equitable Relief. The Borrower recognizes that in the event
the Borrower fails to pay, perform, observe, or discharge any or all of the
Obligations, any remedy at law may prove to be inadequate relief to the
Administrative Agent and the Lenders. The Borrower therefore agrees that the
Administrative Agent and the Lenders, if the Administrative Agent or the Lenders
so request, shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
Section 13.7 No Waiver; Cumulative Remedies. No failure on the part of
the Administrative Agent or any Lender to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power, or privilege under this Agreement preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies provided for in this Agreement and the
other Loan Documents are cumulative and not exclusive of any rights and remedies
provided by law.
Section 13.8 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. The Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all of the Lenders. Any Lender may sell
participations to one or more banks or other institutions in or to all or
a portion of its rights and obligations
TERM LOAN AGREEMENT - Page 42
under this Agreement and the other Loan Documents (including, without
limitation, all or a portion of its Percentage of the outstanding Term
Loan); provided, however, that (i) such Lender's obligations under this
Agreement and the other Loan Documents (including, without limitation,
its Percentage of the outstanding Term Loan) shall remain unchanged, (ii)
such Lender shall remain solely responsible to the Borrower for the
performance of such obligations, (iii) such Lender shall remain the
holder of its Term Loan Note for all purposes of this Agreement, and (iv)
the Borrower shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. Participants have no rights under
the Loan Documents except as provided below. No Lender may sell any
participating interest under which the participant has any rights to
approve any amendment, modification, or waiver of any Loan Document
except as to matters in Section 13.10(a), (b) and (c).
(b) The Borrower and each of the Lenders agree that any Lender
(the "Assigning Lender") may, with the Administrative Agent's consent
(which consent shall not be unreasonably withheld or delayed) and unless
an Event of Default has occurred or the proposed assignment is to be made
to another Lender or to a Lender Affiliate, the Borrower's consent, which
consent of the Borrower shall not be unreasonably withheld or delayed, at
any time assign to one or more other banks, or financial institutions or
other entities all, or a proportionate part of all, of its rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, its Percentage of the outstanding Term Loan) (each an
"Assignee"); provided, however, that (i) each such assignment shall be of
a consistent, and not a varying, percentage of all of the Assigning
Lender's Percentage of the outstanding Term Loan, rights and obligations
under this Agreement and the other Loan Documents, (ii) except in the
case of an assignment of all of a Lender's rights and obligations under
this Agreement and the other Loan Documents, the amount of the
outstanding Term Loan being assigned pursuant to each assignment
(determined as of the date of the Assignment and Acceptance with respect
to such assignment) shall in no event be less than $1,000,000, and (iii)
the parties to each such assignment shall execute and deliver to the
Administrative Agent for its acceptance and recording in the Register (as
defined below), an Assignment Agreement, together with the Term Note
subject to such assignment, and a processing and recordation fee of
$3,500 to be paid by the Assignee. Upon such execution, delivery,
acceptance, and recording, from and after the effective date specified in
each Assignment Agreement, which effective date shall be at least five
Business Days after the execution thereof, or, if so specified in such
Assignment Agreement the date of acceptance thereof by the Administrative
Agent, (x) the assignee thereunder shall be a party hereto as a "Lender"
and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, have the rights and
obligations of a Lender hereunder and under the Loan Documents and (y)
the Lender that is an assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to
such Assignment Agreement, relinquish its rights and be released from its
obligations under this Agreement and the other Loan Documents (and, in
the case of an Assignment Agreement covering all or the remaining portion
of a Lender's rights and obligations under the Loan Documents, such
Lender shall cease to be a party thereto); provided that
TERM LOAN AGREEMENT - Page 43
the obligations of the Borrower under Section 13.1, 13.2 and 13.3 shall
continue to apply to such Lender.
(c) By executing and delivering an Assignment Agreement the
Lender that is an assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment Agreement, such Assigning
Lender 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 Documents or the execution, legality,
validity, and enforceability, genuineness, sufficiency, or value of the
Loan Documents or any other instrument or document furnished pursuant
thereto; (ii) such Assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
the Borrower or any Obligated Party or the performance or observance by
the Borrower or any Obligated Party of its obligations under the Loan
Documents; (iii) such assignee confirms that it has received a copy of
the other Loan Documents, together with copies of the current financial
statements dated a date acceptable to such assignee and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment Agreement;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent or such 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 this
Agreement and the other Loan Documents; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and exercise such powers under the Loan Documents as are delegated
to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lenders and the
principal amount of the Term Loan owing to each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent, and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes under the
Loan Documents. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of an Assignment Agreement executed by an
Assigning Lender and assignee, together with any Term Loan Note subject
to such assignment, the Administrative Agent shall, if such Assignment
Agreement has been completed and is in the form satisfactory to the
Administrative Agent in its reasonable discretion, (i) accept such
Assignment Agreement, (ii) record the information contained therein in
the Register, and (iii) give prompt written notice thereof to the
Borrower. Within five (5) Business Days after its receipt of such notice,
the Borrower, at its expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Term Loan
TERM LOAN AGREEMENT - Page 44
Notes, new Term Loan Notes to the order of such assignee in an amount
equal to the Percentage of the outstanding Term Loan assumed by it
pursuant to such Assignment Agreement and, if the Assigning Lender has
retained a portion of its Percentage of the outstanding Term Loan, new
Term Loan Notes to the order of the Assigning Lender in an amount equal
to the amount of the outstanding Term Loan retained by it hereunder (each
such promissory note shall constitute a "Term Loan Note" for purposes of
the Loan Documents). Such new Term Loan Notes shall be in an aggregate
principal amount of the surrendered Term Loan Notes, shall be dated the
last interest payment date prior to the effective date of such Assignment
Agreement and shall otherwise be in substantially the form of the
appropriate Term Loan Notes initially issued pursuant hereto with
appropriate changes.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or its Subsidiaries
furnished to such Lender by or on behalf of the Borrower or its
Subsidiaries, so long as such assignee, participant or proposed assignee
or participant agrees in writing to be bound the provisions of Section
13.21 of this Agreement.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank and this Section shall not
apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
Section 13.9 Survival. All representations and warranties made in this
Agreement or any other Loan Document or in any document, statement, or
certificate furnished in connection with this Agreement shall survive the
execution and delivery of this Agreement and the other Loan Documents, and no
investigation by the Administrative Agent or any closing shall affect the
representations and warranties or the right of the Lenders to rely upon them.
Without prejudice to the survival of any other obligation of the Borrower
hereunder, the obligations of the Borrower under Sections 13.1 and 13.2 shall
survive repayment of the Term Loan.
Section 13.10 Amendments and Waivers. No amendment, modification or
waiver of, or consent with respect to, any provision of this Agreement or the
other Loan Documents shall in any event be effective unless the same shall be in
writing and signed and delivered by the Borrower and the Required Lenders, and
then any such amendment, modification, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. No
amendment, modification, waiver or consent shall change the Percentage of any
Lender without the consent of such Lender. No amendment, modification, waiver or
consent shall (a) increase the amount of the Term Loan, (b) extend the date for
payment of any principal of or interest on the Term Loan or any fees or other
amounts payable hereunder, (c) reduce the principal amount of the Term Loan, the
rate of interest thereof or any fees or other amounts payable hereunder, (d)
release a Guaranty Agreement (other than as a result of a transaction permitted
hereunder) or all or substantially all of the Collateral, (e) amend, modify or
otherwise
TERM LOAN AGREEMENT - Page 45
alter this Section, or (f) reduce the aggregate Percentage required to effect an
amendment, modification, waiver or consent without, in each case, the consent of
all Lenders. No provisions of Article XII or other provision of this Agreement
affecting the Administrative Agent in its capacity as such shall be amended,
modified or waived without the consent of the Administrative Agent.
Section 13.11 Maximum Interest Rate. No provision of this Agreement or
any other Loan Document shall require the payment or the collection of interest
in excess of the maximum amount permitted by applicable law. If any excess of
interest in such respect is hereby provided for, or shall be adjudicated to be
so provided, in any Loan Document or otherwise in connection with this loan
transaction, the provisions of this Section shall govern and prevail and neither
the Borrower nor the sureties, guarantors, successors, or assigns of the
Borrower shall be obligated to pay the excess amount of such interest or any
other excess sum paid for the use, forbearance, or detention of sums loaned
pursuant hereto. In the event any Lender ever receives, collects, or applies as
interest any such sum, such amount which would be in excess of the maximum
amount permitted by applicable law shall be applied as a payment and reduction
of the principal of the indebtedness evidenced by such Lender's Term Note; and,
if the principal of such Lender's Term Note has been paid in full, any remaining
excess shall forthwith be paid to the Borrower. In determining whether or not
the interest paid or payable exceeds the Maximum Rate, the Borrower, the
Administrative Agent and the Lenders shall, to the extent permitted by
applicable law, (a) characterize any non-principal payment as an expense, fee,
or premium rather than as interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the entire contemplated
term of the indebtedness evidenced by the Term Notes so that interest for the
entire term does not exceed the Maximum Rate.
Section 13.12 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three Business Days
after being deposited in the mail, postage prepaid, or one day after being
entrusted to a reputable commercial overnight delivery service, or, in the case
of telecopy notice, when sent, confirmation of receipt received, addressed as
follows in the case of the Borrower and its Subsidiaries, the Administrative
Agent and the Lenders, or to such other address as may be hereafter notified by
such respective parties hereto:
The Borrower and its Subsidiaries:
Pillowtex Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TERM LOAN AGREEMENT - Page 46
With copies to:
Pillowtex Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America, in its capacities as the Administrative Agent and a Lender:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code CA5-701-12-09
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Flieger
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
5400 Renaissance Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Other Lenders: At the addresses set forth on the signature pages hereof and
the signature page of each Assignment Agreement;
TERM LOAN AGREEMENT - Page 47
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders, as the case may be, shall not be effective until received.
Section 13.13 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and the applicable
laws of the United States of America.
Section 13.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 13.15 Severability. Any provision of this Agreement held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision held to be invalid or illegal.
Section 13.16 Headings. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 13.17 Non-Application of Chapter 346 of Texas Finance Code. The
provisions of Chapter 346 of the Texas Finance Code (Vernon's Texas Finance Code
▇▇▇.) are specifically declared by the parties hereto not to be applicable to
this Agreement or any of the other Loan Documents or to the transactions
contemplated hereby.
Section 13.18 Construction. The parties hereto acknowledge that each of
them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Borrower, the Administrative
Agent and the Lenders.
Section 13.19 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF
THE BORROWER, ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, OR ENFORCEMENT THEREOF.
Section 13.20 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT, THE TERM NOTES,
THE OTHER LOAN DOCUMENTS, AND THE INSTRUMENTS AND DOCUMENTS EXECUTED IN
CONNECTION HEREWITH, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
TERM LOAN AGREEMENT - Page 48
Section 13.21 Confidentiality. Each Lender and the Administrative Agent
agrees (on behalf of itself and each of its Affiliates, directors, officers,
employees and representatives) to use reasonable efforts to keep confidential,
in accordance with customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking or investment
practices, any non-public information supplied to it by the Borrower or any of
its Affiliates pursuant to this Agreement, provided that nothing herein shall
limit the disclosure of any such information (a) to the extent required by
statute, rule, regulation or judicial process, (b) to counsel for any Lender or
the Administrative Agent, (c) to bank or other examiners, regulatory bodies,
auditors or accountants of any Lender, (d) to the Administrative Agent or any
other Lender or any Affiliate thereof, (e) in connection with any litigation
relating to the transactions contemplated by the Loan Documents to which any one
or more of Lenders is a party, (f) to the extent necessary in connection with
the exercise of any rights or remedies under this Agreement or any other Loan
Document, or (g) to any Assignee or participant (or prospective Assignee or
participant) or to any direct or indirect contractual counterparties in swap
agreements or to the professional advisors of such swap counterparties so long
as such Assignee or participant (or prospective Assignee or participant) or
direct or indirect contractual counterparties in swap agreements or such swap
counterparties' professional advisors agrees to handle such information in
accordance with the provisions of this Section 13.21.
Remainder of page intentionally blank.
Signature pages follow.
TERM LOAN AGREEMENT - Page 49
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
BORROWER:
---------
PILLOWTEX CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Executive Vice President and
Chief Financial Officer
ADMINISTRATIVE AGENT:
---------------------
BANK OF AMERICA, N.A., as
Administrative Agent and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
--------------------------------
Managing Director
TERM LOAN AGREEMENT - Page 50
OTHER LENDERS
[SEE ATTACHED]
TERM LOAN AGREEMENT - Page 51
OCM ADMINISTRATIVE SERVICES II, L.L.C.
By: Oaktree Capital Management, LLC,
Its: Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Senior Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Managing Director
Address for Notices:
c/o Oaktree Capital Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TERM LOAN AGREEMENT - Page 52
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Authorized Signatory
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
-----------------------------
Telecopier: _____________________________
Term Loan Agreement
Signature Page
BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
--------------------------------------
Managing Director
Address for Notices:
Bank of America, N.A.
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
PW WILLOW LLC, by Bond Street Capital, LLC,
as agent
By: /s/ ▇▇▇ ▇▇▇
-----------------------------------
Managing Member
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇ (or/and ▇▇▇▇ ▇▇▇▇▇)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Duly Authorized Signatory
Address for Notices:
GE Capital - Bank Loan Group
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
CREDIT LYONNAIS - NEW YORK BRANCH
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ VAN ESSCHE
-----------------------------------------
Vice President
Address for Notices:
________________________________________________
________________________________________________
________________________________________________
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
▇▇▇▇▇ FARGO BANK TEXAS, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Senior Vice President
Address for Notices:
MAC: T5303-047
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
FRANKLIN FLOATING RATE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-----------------------------------
Assistant Vice President
Address for Notices:
Franklin ▇▇▇▇▇▇▇▇▇ Investments
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Director
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
cc: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
COMERICA BANK
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Senior Vice President
Address for Notices:
Comerica Bank - Texas
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ - MC 6510
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
UBS AG, STAMFORD BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Associate Director
Banking Products Services, US
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Associate Director
Banking Products Services, US
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
B III CAPITAL PARTNERS, L.P.
By: DDJ Capital III, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Authorized Signatory
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Authorized Signatory
Address for Notices:
c/o DDJ Capital Management, LLC
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
CONTINENTAL CASUALTY COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
FLEET NATIONAL BANK
By: /s/ G. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mail Stop: CT EH 40221A
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC
Collateral Manager to ARK CLO 2000-1,
Limited
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Authorized Signatory
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
REGIMENT CAPITAL LTD.
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to delegated
authority
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
President
Contact & Address for Notices:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ MANAGEMENT, INC.
as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Vice President
Address for Notices:
__________________________________________
__________________________________________
__________________________________________
Attn: ____________________________________
Telephone:________________________________
Telecopier:_______________________________
Term Loan Agreement
Signature Page
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇
----------------------------------
Authorized Agent
Address for Notices:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
▇▇▇ ▇▇▇▇▇▇ CLO II, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ Management, Inc.,
as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Vice President
Address for Notices:
____________________________________________
____________________________________________
____________________________________________
Attn: ______________________________________
Telephone:__________________________________
Telecopier:_________________________________
Term Loan Agreement
Signature Page
▇. ▇▇▇▇ PRICE RECOVERY FUND II, L.P.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Managing Director
Address for Notices:
▇. ▇▇▇▇ Price Recovery Fund II, L.P.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & SONS SPECIAL
SITUATION PARTNERS, II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Principal
Term Loan Agreement
Signature Page
SATELLITE SENIOR INCOME FUND, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Principal
Address for Notices:
Satellite Asset Management, L.P.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
B III-A CAPITAL PARTNERS, L.P.
By: GP III-A, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Authorized Signatory
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Authorized Signatory
Address for Notices:
c/o DDJ Capital Management, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
MARINER LDC
By: /s/ ▇. ▇▇▇▇ ▇▇
------------------------------
Director
Address for Notices:
__________________________________
__________________________________
__________________________________
Attn: ____________________________
Telephone: ______________________
Telecopier: ______________________
Term Loan Agreement
Signature Page
BALANCED HIGH-YIELD FUND II LTD.
By: ING CAPITAL ADVISORS, LLC,
as Asset Manager
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
-------------------------------
Vice President
Address for Notices:
ING Capital Advisors, LLC
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Director
Address for Notices:
Bankers Trust Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Stop: JCY05-0511
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
BALANCED HIGH-YIELD FUND I LTD.
By: ING CAPITAL ADVISORS, LLC,
as Asset Manager
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
--------------------------
Vice President
Address for Notices:
ING Capital Advisors, LLC
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & SONS SPECIAL
SITUATION PARTNERS, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Principal
Term Loan Agreement
Signature Page
BANK POLSKA KASA OPIEKI, S.A., NEW
YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Authorized Signatory
Address for Notices:
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Assistant Vice President
Address for Notices:
Bank of America, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
FIDELITY ADVISOR SERIES II: Fidelity
Advisor Floating Rate High Income Fund
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Assistant Treasurer
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
FIDELITY FIXED INCOME TRUST
Fidelity High Income Fund
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Assistant Treasurer
Address for Notices:
________________________________
________________________________
________________________________
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
LAZARD DEBT RECOVERY FUND, LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Managing Director
Address for Notices:
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
MOUNTAIN CAPITAL CLO I LTD.
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Director
Address for Notices:
Mountain Capital CLO I Ltd.,
c/o Mizuho Financial Group,
32nd Floor, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
▇▇▇ ▇▇▇▇▇▇
SENIOR INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Vice President
Address for Notices:
________________________________________
________________________________________
Attn: __________________________________
Telephone: ____________________________
Telecopier: ____________________________
Term Loan Agreement
Signature Page
SILVER OAK CAPITAL, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Authorized Signatory
Address for Notices:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Vice President
Address for Notices before April 15, 2002:
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices after April 15, 2002:
1251 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: _______________________________
Telecopier: _______________________________
Term Loan Agreement
Signature Page
PB CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loan Agreement
Signature Page