Exhibit 10.21
AGREEMENT
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THIS AGREEMENT is executed and entered into effective as of July 2,
1999 (the "Effective Date"), by and between the Pension Benefit Guaranty
Corporation ("PBGC") and Tultex Corporation ("Tultex" or "Company").
WITNESSETH
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WHEREAS, Tultex is a contributing sponsor, as defined in section
4001(a)(13) of ERISA (as hereinafter defined), of the Pension Plan for the
Employees of Tultex ("Plan"); and
WHEREAS, Tultex recently completed a recapitalization of the Company
whereby a new $150 million secured credit facility from Bank of America was
obtained that: 1) paid off all of the outstanding amounts under the Company's
prior unsecured revolving credit agreement; 2) funded a partial tender offer for
the Senior Notes; 3) provided a security interest to its Senior Noteholders; and
4) provided Tultex with working capital (the "Recapitalization"); and
WHEREAS, PBGC informed Tultex that, as a result of the
Recapitalization, PBGC may determine to initiate proceedings pursuant to section
4042(a)(4) of ERISA to terminate the Plan based on the ground that the possible
long-run loss to the PBGC may reasonably be expected to increase unreasonably;
and
WHEREAS, in consideration of Tultex's willingness to undertake the
obligations set forth below in this Agreement, PBGC will not institute
proceedings under section 4042 of ERISA to terminate the Plan based on the
grounds that the Recapitalization results in an unreasonable increase in the
possible long-run loss to the PBGC.
NOW THEREFORE, for good and valuable consideration, and intending to be
bound hereby, PBGC and Tultex agree as follows.
I. DEFINITIONS.
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When used herein:
"Additional Cash Contributions" shall have the meaning set forth in
Section II.
"Agreement" means this agreement made by and between PBGC and Tultex.
"Bank of America" means Bank of America Business Credit.
"Code" means the Internal Revenue Code of 1986, as amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"PBGC" means the Pension Benefit Guaranty Corporation, a wholly-owned
United States government corporation.
"Plan" shall have the meaning set forth in the recitals hereto.
"Plan Year" means the 12-month period from June 1 to May 31. For
example, the 1999 Plan Year ends on May 31, 1999.
"Recapitalization" shall have the meaning set forth in the recitals
hereto.
"Required Credit Balance" means, as of the end of any Plan Year, the
amount of the Additional Cash Contributions paid or payable for such Plan Year
and prior Plan Years, adjusted for interest at the end of the Plan Year. The
Required Credit Balance shall be maintained until the Agreement terminates
pursuant to Section VI hereof.
"Senior Noteholders" mean the holders of Tultex 9-5/8 percent Senior
Notes due 2007 and 10-5/8 percent Senior Notes due 2005.
"Tultex Corporation" shall mean Tultex Corporation, a Virginia
corporation with its headquarters in Martinsville, Virginia.
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II. ADDITIONAL CASH CONTRIBUTIONS:
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In addition to the minimum funding contributions to the Plan required
under the funding standards of section 412 of the Code, Tultex will make
Additional Cash Contributions to the Plan as follows: for the 1999 Plan year, $2
million on or before December 31, 1999; for the 2000 Plan year, $2 million on or
before December 31, 2000; and for the 2001 Plan year, $1.5 million on or before
December 31, 2001.
III. CREDIT BALANCE MAINTENANCE REQUIREMENT.
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For each Plan Year during the term of this Agreement, beginning with
the 1999 Plan Year, on or before December 31 following the end of the Plan Year,
Tultex will make any contribution to the Plan necessary to maintain the Required
Credit Balance in the Plan's funding standard account.
IV. TAX DEDUCTIBILITY LIMITATION ON CONTRIBUTIONS.
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Tultex shall not be obligated to make the portion of any payment
required under Section II or III of this Agreement that would be non-deductible
under Code ss. 404 for the Plan Year. If a required payment exceeds the maximum
deductible amount for the Plan under Code ss. 404 for the Plan year, then the
portion of any payment not made in a given Plan Year due to the maximum tax
deductible contribution limitation will be carried over and paid in the next
Plan Year for which it is deductible. The amount of the maximum deductible
contributions will be determined with the current liability calculated lowering
the interest rate as necessary to make such additional contributions deductible,
but not less than the lowest interest rate in the permissible range as
prescribed under Code ss. 412(l)(7)(C), or any successor provisions thereto.
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V. RENEWABLE LETTER OF CREDIT.
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On or before September 30, 1999, Tultex will provide to PBGC an
irrevocable Letter of Credit, substantially in the form attached hereto, for the
benefit of PBGC with the following terms:
(a) Amount: An initial amount of $2 million. After Additional Cash
Contributions of $4 million have been contributed to the Plan, the Letter of
Credit may be reduced to $1.5 million.
(b) Duration and Features: The Letter of Credit shall be a one year
irrevocable Letter of Credit, effective on September 30, 1999, and, with annual
renewals, shall remain in effect until all Additional Cash Contributions have
been made.
(c) Annual Notice and Replacement: The Letter of Credit shall provide
that the issuing bank shall notify PBGC and Tultex no less than sixty (60) days
prior to the expiration of the Letter of Credit as to whether it intends to
renew the Letter of Credit for another year. If the issuing bank does not intend
to renew, Tultex must provide a replacement Letter of Credit before the
thirtieth (30) day prior to the expiration of the Letter of Credit. Should the
Letter of Credit be drawn upon to satisfy the requirements of Section
V(d)(3)-(5) below, Tultex must provide PBGC a replacement Letter of Credit
within five (5) business days for the amount specified in Section V(a) above.
(d) Draw Events: PBGC may draw the full amount of the Letter of Credit,
and any replacement Letter of Credit, in the event of the following:
(1) PBGC receives a Notice of Intent to Terminate the
Plan in a distress termination pursuant to section
4041(c) of ERISA;
(2) Ten (10) days after PBGC issues a Notice of
Determination that the Plan should be terminated in
an involuntary termination pursuant to section 4042
of ERISA;
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(3) Tultex fails to provide a replacement Letter of
Credit more than thirty (30) business days before the
expiration of the Letter of Credit then in place;
(4) Tultex fails to make an Additional Cash Contribution
by the prescribed date; and
(5) Tultex fails to maintain the Required Credit Balance
as described in Section III above.
(e) Escrow Account for Letter of Credit:
(1) Amounts received by PBGC pursuant to a draw on the
Letter of Credit or replacement Letter of Credit
under Section V(d)(1) and (d)(2) above shall be held
in an interest bearing escrow account until the Plan
has been terminated, either by court order or by
agreement between the Plan administrator of the Plan
and PBGC. If, however, PBGC subsequently withdraws
the Notice of Determination, or fails or otherwise
declines to terminate the Plan under ERISA ▇▇.▇▇.
4041(c) or 4042, PBGC will return the amount in the
escrow account to Tultex. Taxes on earnings on any
escrowed amounts shall be charged to the escrow
account. After-tax interest earned on escrowed
amounts shall he available for distribution to
Tultex. If the Plan is terminated and the liabilities
of the Plan associated with termination are less than
the escrow amount, PBGC will apply the amount drawn
to satisfy Tultex's liabilities associated with
termination of the Plan. Any amounts remaining in the
escrow after Tultex's termination liabilities are
satisfied will be returned to Tultex.
(2) Amounts received by PBGC pursuant to a draw of the
Letter of Credit under Section V(d)(3) above shall be
held in an interest bearing escrow account until such
time as an event described in sections V(d)(1), (2) ,
(4) or (5) occurs, at which time Sections V(e)(1) or
(3) will govern the use of the amount in escrow
account.
(3) Amounts received by PBGC pursuant to a draw of the
Letter of Credit under Section V(d)(4) above shall be
held in an interest bearing escrow account until such
time as the missed Additional Cash Contribution has
been made and PBGC receives from Tultex a replacement
Letter of Credit in the amount required under section
V(a) above. If the missed Additional Cash
Contribution has been made to the Plan and PBGC
receives a replacement Letter of Credit under section
V(c) above, PBGC will return the amount in the escrow
account to Tultex.
(4) Amounts received by PBGC pursuant to a draw of the
Letter of Credit under Section V(d)(5) above shall be
held in an interest bearing escrow
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account until such time as Tultex contributes to the
Plan an amount sufficient to maintain the credit
balance required by Section III above. If Tultex
contributes to the Plan an amount sufficient to
maintain the Required Credit Balance and PBGC
receives a replacement Letter of Credit under section
V(c) above, PBGC will return the amount in the escrow
account to Tultex.
In the event the Plan is successfully terminated in a standard
termination under section 4041(b) of ERISA, amounts received by PBGC pursuant to
a draw of the Letter of Credit will be returned. In addition, if the Agreement
terminates in accordance with Section VI below, any balance in the escrow
account will be returned to Tultex.
VI. EXPIRATION OF THE AGREEMENT.
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This Agreement will terminate upon the earliest to occur of (a), (b),
(c), or (d) below, but in the case of (a), (b), or (c), no earlier than five (5)
years from the date of the Agreement, and provided that Tultex has made all
contributions required under the Agreement.
(a) The date on which Tultex obtains ratings on its unsecured debt
from Standard & Poor's and ▇▇▇▇▇'▇ of at least BBB and Baa2,
respectively.
(b) The date on which Tultex demonstrates to PBGC that the Plan
has no unfunded benefit liabilities as determined under
section 4001(a)(18) of ERISA as of the last day of the Plan
Year for any two consecutive Plan Years (the last day of the
Plan Year in the second consecutive year being the measurement
date).
(c) In the event there is no rating as provided in subsection (a)
above, the date on which Tultex obtains a private ratings on a
hypothetical issue of unsecured debt at the rating level (or
better) specified in paragraph (a) above. For purposes of
obtaining such private ratings, the amount of the hypothetical
debt will equal at least $100 million.
(d) The date on which the Plan is successfully terminated in a
standard termination under section 4041(b) of ERISA.
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VII. NOTICE OF EXPIRATION OF AGREEMENT.
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Tultex shall provide PBGC with written notice of any determination by
Tultex that it has achieved one of the tests for expiration of this Agreement
set forth in Section VI above. PBGC will respond in writing to Tultex within
thirty (30) days of the receipt of Tultex's written notice whether it concurs
with the determination. Such concurrence shall not be unreasonably withheld.
Upon receipt by Tultex of PBGC's concurrence, the Agreement will terminate.
VIII. REPORTING REQUIREMENTS.
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From and after the Effective Date and until termination of this
Agreement, and in addition to any reporting obligations that Tultex may have
under ERISA, Tultex shall deliver or cause to be delivered to PBGC--Corporate
Finance & Negotiations Department the following:
(a) Copies of Form 5500 (with attachments) when filed with the
IRS, and Actuarial Valuation Reports prior to the end of the
Plan year for the Plan.
(b) Written notice of date and amount of contributions made to the
Plan within ten (10) business days after the contribution is
made, or written notice of failure to make any contribution
within five (5) business days after the due date. If any of
the contributions required under this Agreement cannot be made
in a Plan Year due to the maximum tax deductible contribution
limitation, Tultex will, within ten (10) days of such
determination, provide PBGC with the calculations supporting
that conclusion.
(c) Written notice thirty (30) days prior to any change in any of
the Plan's actuarial assumptions or methods for the purpose of
the minimum funding standard of section 412 of the Code, which
change shall be subject to PBGC's consent in advance. Such
consent shall not be unreasonably withheld.
(d) Written notice no later than thirty (30) days prior to any
Plan merger or spinoff.
(e) Written notice thirty (30) days prior to any material
refinancing of debt or material change in debt amortization
schedule, any violation of financial covenants, or receipt of
a waiver of financial covenants.
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(f) Written notice thirty (30) days prior to any transaction that
would have the effect of transferring assets and liabilities
of the Plan or transferring sponsorship of the Plan.
(g) Written notice thirty (30) days prior to any sale, transfer or
other disposition of assets of any member of the controlled
group where such assets represent (i) 10% or more of the book
value of the assets of the controlled group on a consolidated
basis, or (ii) generated 10% or more of the consolidated
revenues or operating income.
(h) Copies of any notices of reportable events at the time they
are filed.
IX. GENERAL PROVISIONS.
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(a) Compliance with ERISA. Nothing in this Agreement shall affect or in
any way diminish Tultex's obligations to comply with ERISA.
(b) Limitation of Rights. This Agreement is intended to be and is for
the sole and exclusive benefit of PBGC and Tultex. Nothing expressed or
mentioned in or to be implied from the Agreement gives any person other than
PBGC and Tultex any legal or equitable right, remedy or claim against Tultex or
PBGC under or in respect of this Agreement.
(c) Notices. All notices, demands, instructions and other
communications required or permitted under the Agreement to any party to the
Agreement shall be in writing and shall be personally delivered or sent by
registered, certified or express mail, postage prepaid, return receipt
requested; telefacsimile (which shall be immediately followed by the original of
such communication); or pre-paid overnight delivery service with confirmed
receipt and shall be deemed to be given for purposes of this Agreement on the
date the writing is received by the intended recipient, or in the case of
telefacsimile, on the date transmitted to the intended recipient. Unless
otherwise specified in a notice sent or delivered in accordance with the
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foregoing provisions of this section, notices, demands, instructions and other
communications in writing shall be sent to the parties as indicated below:
To Tultex: General Counsel
Tultex Corporation
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
To PBGC: Director Corporate Finance
and Negotiations Department
Pension Benefit Guaranty Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; and
General Counsel
Pension Benefit Guaranty Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) Counterparts. This Agreement may be executed in one or more
counterparts and by different parties on separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(e) Entire Agreement. This Agreement contains the complete and
exclusive statement of the agreement and understanding by and among the parties
hereto and supersedes all prior agreements, understandings, commitments,
representations, communications, and proposals, oral or written, between the
parties relating to the subject matter of this Agreement. This Agreement may not
be amended, modified, or supplemented except by an instrument in writing
executed by the parties to this Agreement.
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(f) Representations and Warranties. PBGC and Tultex each represents and
warrants to the other that it has full power and authority to enter into this
Agreement and that this Agreement constitutes a legal, valid and binding
obligation enforceable against it in accordance with the Agreement's terms.
(g) No Waivers. The failure of any party to the Agreement to enforce a
provision of the Agreement shall not constitute a waiver of the party's right to
enforce that provision of the Agreement.
(h) Headings. The section and paragraph headings contained in this
Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
(i) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of Virginia and by ERISA, the Code and
other laws of the United States to the extent they preempt Virginia law.
(j) Binding Effect. This Agreement shall be binding upon Tultex and
PBGC and their respective successors, if any.
(k) Construction. The language used in this Agreement shall be deemed
to be the language chosen by the parties to express their mutual intent, and no
rule of strict construction shall be applied against any party hereto. Nor shall
any rule of construction that favors a non-draftsman be applied. A reference to
any statute shall be deemed also to refer to all rules and regulations
promulgated under the statute, unless the context requires otherwise.
(l) Assignment. This Agreement may not be assigned in whole or in part
by either party without the express written consent of the other party.
(m) No Change to Governing Plan Documents or Administration. This
Agreement is not a document or instrument governing the Plan, nor does anything
in this Agreement amend,
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supplement or derogate from the documents and instruments governing the Plan.
Further, nothing in this Agreement alters, amends or otherwise modifies the
operation or administration of the Plan.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the day and year first stated above.
PENSION BENEFIT GUARANTY CORPORATION
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Negotiator and Director, Corporate
Finance and Negotiations Department
TULTEX CORPORATION
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By: O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and
General Counsel
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