EXHIBIT 99.1
FIRST AMENDMENT TO
POST-PETITION
LOAN AND SECURITY AGREEMENT
---------------------------
THIS FIRST AMENDMENT TO POST-PETITION LOAN AND SECURITY AGREEMENT (the
"Amendment"), dated as of this 3rd day of January, 2005, is made by and among
TROPICAL SPORTSWEAR INT'L CORPORATION, a Florida corporation ("Parent"),
TROPICAL SPORTSWEAR COMPANY, INC., a Delaware orporation ("TSCI"), SAVANE
INTERNATIONAL CORP., a Texas corporation ("Savane"), APPAREL NETWORK CORP., a
Florida corporation ("Apparel"), TSI BRANDS, INC., a Delaware corporation
("TSI"), and TSIL, INC., a Delaware corporation ("TSIL"; and together with
Parent, TSCI, Savane, Apparel and TSI, the "Borrowers" and each, a "Borrower"),
the financial institutions party to this Agreement from time to time
(collectively, the "Lenders"), and THE CIT GROUP/COMMERCIAL SERVICES, INC., a
New York corporation, as agent for the Lenders (in such capacity, the "Agent"),
to the Post-Petition Loan and Security Agreement, dated as of December 16,
2004 (as amended, modified, restated or supplemented from time to time, the
"Loan Agreement"), among the Agent, the Lenders and the Borrowers. All
capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Loan Agreement.
RECITALS
A. Pursuant to the Loan Agreement, the Lenders have agreed to make loans
and extend credit to the Borrowers in the amounts, upon the terms and subject to
the conditions contained therein.
B. The Agent, the Lenders and the Borrowers have agreed to amend the Loan
Agreement as set forth in this Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the Agent, the Lenders and the Borrowers hereby agree as
follows:
ARTICLE I
AMENDMENT TO LOAN AGREEMENT
Section 4.18, Super Priority; Nature of Secured Obligations and the Agent's
Liens, is amended by deleting clause (c) therefrom and by substituting in lieu
thereof the following:
"(c) The Agent's Liens on the Collateral for the benefit of the Lenders and
its administrative claims under Sections 364(c)(1) and 364(d) of the Bankruptcy
Code granted in respect of the Secured Obligations shall also have priority over
any claims arising under Section 506(c) of the Bankruptcy code (to the extent
and as provided in the Orders), subject and subordinate only to: (x) fees
pursuant to 28 U.S.C.ss.1930 and to the Clerk of the Court, and (y) unpaid and
outstanding fees and disbursements actually incurred on or after the Petition
Date by the Debtors' professionals (collectively, the "Debtors' Professionals")
and allowed by order of this Court pursuant to sections 326, 328, 330, or 331 of
the Bankruptcy Code (collectively, the "Allowed Debtors' Professional Fees"),
less the amount of any retainers held by any such Professionals, in an aggregate
amount not to exceed $700,000 (the "Debtors' Professionals' Carve-Out"), and (z)
unpaid and outstanding fees and disbursements actually incurred on or after the
Petition Date by professionals for any official committee (each a "Committee")
appointed in the Chapter 11 Cases (collectively, with the Debtors'
Professionals, the "Professionals") and allowed by order of this Court pursuant
to sections 326, 328, 330, or 331 of the Bankruptcy Code (collectively, with the
Allowed Debtors' Professional Fees, the "Allowed Professional Fees"), in an
aggregate amount not to exceed $300,000 (the "Committee Professionals'
Carve-Out"; together with the Debtors' Professionals' Carve-Out, the
"Carve-Out"); provided, however, that the Carve-Out shall not include, apply to,
or be available for any fees or expenses incurred by any party, including the
Debtors or any Committee, in connection with any of the following: (a) an
assertion, a joinder in, or the support of (but excluding any investigation
conducted prior to the assertion or joinder in) the initiation or prosecution of
any claims, causes of action, adversary proceedings, or other litigation against
the Agent, the Lenders, the Pre-petition Agent, or the Pre-petition Lenders,
including, without limitation, challenging the amount, legality, validity,
extent, perfection, priority, or enforceability of, or asserting any defense,
counterclaim, or offset to, (i) the Secured Obligations or the security
interests and liens of the Agent in respect thereof, and/or (ii) the
Pre-petition Revolving Credit Loans, Pre-Petition Loan Agreement or the security
interests and liens of the Pre-petition Agent and Pre-petition Lenders in
respect thereof, or asserting any claims or causes of action, including, without
limitation, any actions under chapter 5 of the Bankruptcy Code, against the
Agent, the Lenders, the Pre-petition Agent, or the Pre-petition Lenders, (b) a
request to use Cash Collateral (as defined in Section 363 of the Bankruptcy
Code) without the prior written consent of the Lenders, (c) a request for
authorization to obtain post-petition loans or other financial accommodations
pursuant to Section 364(c) or (d) of the Bankruptcy Code other than from the
Lenders without the prior written consent of the Lenders, or (e) any act or
omission to act adverse to the Agent, the Lenders, or their rights and remedies
under this Agreement or their interests in the Collateral that would,
individually or in the aggregate, have a Material Adverse Effect (collectively,
the "Carve-Out Expenses"). Except as set forth herein or in the Final Order, no
other claims having a priority superior or pari passu to that granted to the
Agent and Lenders by the Final Order shall be granted or approved while any
Secured Obligations under this Agreement remain outstanding."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby represent and warrant to the Agent and the Lenders that:
2.1 Compliance With the Loan Agreement. As of the execution of this
Amendment, the Borrowers are in compliance with all of the terms and provisions
set forth in the Loan Agreement and the other Loan Documents to be observed or
performed by the Borrowers.
2.2 Representations in Loan Agreement. The representations and warranties
of the Borrowers set forth in the Loan Agreement and the other Loan Documents
are true and correct in all material respects except to the extent that such
representations and warranties relate solely to or are specifically expressed as
of a particular date or period which is past or expired as of the date hereof.
2.3 No Event of Default. No Default or Event of Default exists.
ARTICLE III
GENERAL
3.1 Loan Documents. The Loan Agreement and the other Loan Documents are
amended to provide that any reference therein to the Loan Agreement shall mean,
unless otherwise specifically provided, the Loan Agreement as amended hereby,
and as further amended, restated, supplemented or modified from time to time.
3.2 Full Force and Effect. As expressly amended hereby, the Loan Agreement
and the other Loan Documents shall continue in full force and effect in
accordance with the provisions thereof. As used in the Loan Agreement and the
other Loan Documents, "hereinafter", "hereto", "hereof", or words of similar
import, shall, unless the context otherwise requires, mean the Loan Agreement or
the other Loan Documents, as the case may be, as amended by this Amendment.
3.3 Applicable Law. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North
Carolina.
3.4 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one and the same instrument.
3.5 Further Assurances. The Borrowers shall execute and deliver to the
Agent such documents, certificates and opinions as the Agent may reasonably
request to effect the amendments contemplated by this Amendment.
3.6 Headings. The headings of this Amendment are for the purpose of
reference only and shall not effect the construction of this Amendment.
3.7 Expenses. The Borrowers shall reimburse the Agent and the Lenders for
their legal fees and expenses incurred in connection with the preparation,
negotiation, execution and delivery of this Amendment and all other agreements
and documents contemplated hereby.
3.8 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE AGENT, THE LENDERS AND THE BORROWERS EACH WAIVES THE RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF
OR RELATED TO THIS AMENDMENT.
[signatures on next page]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers to be effective on the
day and year first above written.
BORROWERS:
TROPICAL SPORTSWEAR INT'L
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Secretary
TROPICAL SPORTSWEAR COMPANY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Assistant Secretary
SAVANE INTERNATIONAL CORP.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Secretary
APPAREL NETWORK CORP.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Assistant Secretary
TSI BRANDS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Assistant Secretary
[signatures continued on next page]
TSIL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Assistant Secretary
AGENT:
THE CIT GROUP/COMMERCIAL
SERVICES, INC.
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
Senior Vice President
LENDERS:
THE CIT GROUP/COMMERCIAL
SERVICES, INC.
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
Senior Vice President
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
Senior Vice President
