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EXHIBIT 99.d
AMENDMENT TO PLEDGE AGREEMENT
THIS AMENDMENT TO PLEDGE AGREEMENT (this "Amendment") is
made as of September 12, 1995 by XXXXXXX X. XXXXXX, an individual resident in
the State of Illinois ("Xxxxxx"), and NATWEST BANK N.A., (formerly known as
NATIONAL WESTMINSTER BANK USA) a national banking association having an office
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Bank").
W I T N E S S E T H:
WHEREAS, Xxxxxx, directly or indirectly, is the legal and
beneficial owner of certain issued and outstanding shares of Class A and B
Common Stock of Fruit of the Loom, Inc., a Delaware corporation (the
"Company");
WHEREAS, pursuant to an Assignment of Accounts agreement by
and between Xxxxxx and the Bank made as of April 10, 1987 (the "Assignment
Agreement"), Xxxxxx pledged to the Bank, and granted to the Bank a first
priority security interest in, a certificate of deposit in the original
principal amount of $13,200,000;
WHEREAS, the Assignment Agreement was made to secure a
certain guaranty executed by Xxxxxx on April 10, 1987 (the "Guaranty") in favor
of the Bank pursuant to which Xxxxxx provided an unlimited guaranty to the Bank
of VBQ's (as hereinafter defined) obligations under the Reimbursement Agreement
(as hereinafter defined), and as collateral security for the payment of all
obligations of Condec Corporation ("Condec"), now VBQ, Inc. ("VBQ"), arising
out of or in any way connected with the Letter of Credit Reimbursement
Agreement (the "Reimbursement Agreement") made as of April 15, 1987 pursuant to
which VBQ (then Condec) made certain agreements with the Bank in consideration
for the Bank's issuance of a letter of credit (the "Letter of Credit") (the
obligations under the Reimbursement Agreement and Xxxxxx'x obligations under
the Guaranty collectively, the "Obligations");
WHEREAS, pursuant to a Pledge Agreement by and between Xxxxxx
and the Bank dated as of August 25, 1993, Xxxxxx pledged 282,353 shares of
Class B Common Stock of the Company;
WHEREAS, Xxxxxx has currently pledged to the Bank 344,498
shares of the Common Stock of the Company pursuant to the Pledge Agreement, of
which amount 11,487 are Class A Common Stock and 333,011 are Class B Common
Stock; and
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WHEREAS, Xxxxxx, from time to time, has been in violation of
the Security Ratio of the Pledge Agreement and the parties have agreed to amend
certain provisions of the Pledge Agreement to, among other things, provide for
the delivery of additional pledged shares and substitute a Minimum Value (as
hereinafter defined) covenant in lieu of the Security Ratio covenant set
forth in Section 5 of the Pledge Agreement;
NOW, THEREFORE, in consideration of the Bank's forbearance in
exercising its rights under the Pledge Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Xxxxxx and the Bank hereby agree as follows:
1. Definitions. Unless otherwise indicated, capitalized terms
used herein and not defined herein shall have the meanings as set forth in the
Pledge Agreement.
2. Pledge of Additional Shares.
(a) Xxxxxx hereby pledges to the Bank, and otherwise
grants to the Bank a first priority security interest
in, 36,000 shares of Class B Common Stock of the
Company owned by Xxxxxx (the "Additional Shares")
which Additional Shares shall serve as additional
security for the Secured Obligations and shall be
delivered to the Bank on the date hereof in
accordance with Section 4 of the Pledge Agreement.
The Additional Shares, as well as any other shares
pledged to the Bank hereunder, shall be deemed to be
part of the Pledged Shares pledged to the Bank
pursuant to the Pledge Agreement.
(b) Xxxxxx hereby repeats and affirms the representations
and warranties set forth in Section 6 of the Pledge
Agreement with respect to this Amendment, and the
Additional Shares and other collateral pledged
hereunder, except as set out in Section 5 hereof.
Xxxxxx hereby further affirms that the covenants set
forth in Section 10 of the Pledge Agreement shall
apply with full force and effect to this Amendment
and the Additional Shares and other collateral
pledged hereunder.
3. Release of Certain Pledged Shares.
Upon receipt of the Additional Shares referred to in Section 2
hereof, and payment of the Amendment Fee referred to in Section 7 hereof, the
Bank shall take all steps to release and
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deliver to Xxxxxx the 11,487 shares of the Company's Class A Common Stock which
it currently holds pursuant to the Pledge Agreement.
4. Section 5 of the Pledge Agreement is hereby amended in its
entirety to read as follows:
"Section 5. Minimum Value of Pledged Collateral.
(a) The Pledged Collateral must at all times have a market
value of at least Seven Million Ten Thousand Nine Hundred and Sixty
Two United States Dollars ($7,010,962) (the "Minimum Value"). So long
as the market value of the Pledged Collateral equals or exceeds the
Minimum Value and no other Event of Default exists under the Pledge
Agreement, Xxxxxx, may at his option, pledge to the Bank (i)
additional Class A or Class B Common Stock of the Company or (ii)
additional cash, and the value of such shares and/or cash shall be
counted towards the Minimum Value requirement set forth herein. Any
such additional shares shall be part of the Pledged Shares and any
additional shares and cash pledged hereunder shall be part of the
Pledged Collateral;
(b) Should the market value of the Pledged Collateral fall
below the Minimum Value, Xxxxxx shall, within one business day after
receipt of notice of such violation from the Bank, pledge such
additional cash as is necessary to increase the market value of the
Pledged Collateral above the Minimum Value. The Bank shall hold all
cash collateral pledged hereunder in a cash collateral account (the
"Cash Collateral Account") to be applied in accordance with the terms
hereof and the Reimbursement Agreement. If Xxxxxx shall have failed
to increase the Minimum Value by pledging additional cash within the
time period set forth above, then the Bank may immediately declare an
Event of Default and sell all or a portion of the Pledged Collateral
and convert it to cash to be held in the Cash Collateral Account and
applied against the Secured Obligations as the same shall become due
and payable, and in accordance with the terms hereof and the
Reimbursement Agreement;
(c) For purposes of this Section 5 the market value of the
Pledged Collateral as of any day shall equal the sum of (i) the cash
collateral held by the Bank pursuant to the terms hereof (but
excluding any cash collateral held by the Bank pursuant to the
Assignment Agreement) and (ii) the aggregate market value of the
Pledged Shares held by the Bank as of the end of the preceding day
(based on the closing price of the Company's Class A Common Stock as
quoted on the NYSE for such preceding day), such determination by the
Bank to be conclusive for all purposes hereunder.
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(d) In the event Xxxxxx shall pledge shares of Class A Common
Stock of the Company to the Bank pursuant to this Amendment, those
shares shall be, or prior to the pledge thereof, Xxxxxx shall cause
such shares to be, registered under applicable federal and state
securities laws, freely transferable and salable in the public market,
and free of any and all security interests, liens, pledges, set-off
rights, charges, claims or encumbrances of any kind except for the
security interest to be created by this Amendment and the Xxxxxx Inc.
Encumbrances.
(e) In the event Xxxxxx shall pledge additional shares of
Class B Common Stock of the Company to the Bank pursuant to this
Amendment, Xxxxxx shall have caused to be registered under the
Securities Act of 1933, as amended, and qualified for sale under
applicable federal and state securities laws, that number of shares of
Class A Common Stock of the Company into which such additional shares
of Class B Common Stock may be converted upon a foreclosure by the
Bank on the Pledged Collateral.
5. Section 6(h) of the Pledge Agreement is hereby amended in its
entirety to read as follows:
"(h) Registration of Pledged Shares. Xxxxxx has caused to be
registered under the Securities Act of 1933, as amended, and has qualified for
sale under applicable federal and state securities laws, four hundred eight
thousand six hundred (408,600) shares of Class A Common Stock of the Company
into which the Pledged Shares may be converted upon any foreclosure by the Bank
on the Pledged Collateral."
6. A new subsection (a)(iii) is hereby added to Section 14
("Events of Default and Remedies Upon Default") to read as follows:
"(iii) failure by Xxxxxx to comply with and maintain the
Minimum Value of the Pledged Collateral pursuant to Section 5 of the
Agreement."
7. Section 14(b) is hereby amended in its entirety to read as
follows:
"(b) If any Event of Default shall have occurred and be
continuing, upon written notice thereof to Xxxxxx the Bank may
exercise in respect of the Pledged Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it,
all the rights and remedies provided a secured party upon the default
of a debtor under the UCC at that time, and the Bank may also, without
notice except as specified below, sell the Pledged Collateral or
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any part thereof in one or more parcels at public or private sale, at
any exchange, broker's board or at any of the Bank's respective
offices or elsewhere, for cash, on credit or for future delivery, upon
such terms as the Bank may determine to be commercially reasonable and
the Bank may be the purchaser of any or all of the Pledged Collateral
so sold and thereafter hold the same, absolutely, free from any right
or claim of whatsoever kind. The Bank shall not be required to give
Xxxxxx notice of any sale of Pledged Collateral except as may be
required by law. The Bank shall not he obligated to make any sale of
Pledged Collateral regardless of any notice of sale having been given.
The Bank may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned. The Bank shall incur no liability as a result of the
sale of the Pledged Collateral, or any part thereof, at any sale into
the public market or by private sale. Xxxxxx hereby waives any claims
against the Bank arising by reason of the fact that the price at which
any Pledged Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale,
even if the Bank accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree.
8. Fees. Xxxxxx will, on the date hereof, pay to the Bank (i)
the fees and expenses of their counsel, incurred, or which are required to be
paid, in connection with the negotiation, preparation, execution and delivery
of this Amendment, and (ii) a non-refundable amendment fee in the amount of
$36,466 (the "Amendment Fee").
9. Miscellaneous.
9.1 Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New
York (excluding its conflicts of laws rules).
9.2 Entire Agreement. This Amendment constitutes the
entire agreement among the parties with respect to the subject
matter hereof, and supersedes all prior agreements and
understandings among the parties with respect thereto.
9.3 Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
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10. Except as expressly modified and amended hereby, the Pledge
Agreement and all other existing collateral arrangements shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
XXXXXXX XXXXXX
X. Xxxxxx
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NATWEST BANK N.A.
By: Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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