EXHIBIT 10.8
WAIVER AND SEVENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS WAIVER AND SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of March 31, 2000, is entered into among PILLOWTEX
CORPORATION, a Texas corporation (the "Borrower"), the institutions listed on
the signature pages hereof that are parties to the Credit Agreement defined
below (collectively, the "Lenders"), and BANK OF AMERICA, N.A. (formerly known
as NationsBank, N.A., successor by merger to NationsBank of Texas, N.A.), as
Administrative Agent for itself and the Lenders (in said capacity, the
"Administrative Agent").
BACKGROUND
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A. The Borrower, the Lenders and the Administrative Agent are parties to
that certain Amended and Restated Credit Agreement, dated as of December 19,
1997 (as amended through the date hereof, the "Credit Agreement"). Terms
defined in the Credit Agreement and not otherwise defined herein shall be used
herein as defined in the Credit Agreement.
B. The Borrower, the Lenders and the Administrative Agent desire to make
certain amendments to the Credit Agreement and certain other loan documents.
C. The Borrower has requested a waiver of existing Events of Default under
the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders and the Administrative Agent covenant and agree as follows:
1. WAIVER. Subject to the satisfaction of the conditions of effectiveness
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set forth in Section 8 of this Amendment and the other conditions contained
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herein, the Lenders hereby waive (a) the Events of Default with respect to
Section 7.11 of the Credit Agreement which occurred as a result of the failure
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of the Borrower to comply with the required Leverage Ratio at the end of the
Fiscal Quarters ended October 2, 1999 and January 1, 2000, and (b) the Events of
Default with respect to Sections 7.12 and 7.13 of the Credit Agreement which
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occurred as a result of the failure of the Borrower to comply with the required
Fixed Charge Coverage Ratio and Net Worth at the end of the Fiscal Quarter
ended January 1, 2000 (the "Existing Events of Default"). The waiver provided
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in this Section 1 shall not be and shall not be deemed to be a waiver of any
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Events of Default under the Credit Agreement other than the Existing Events of
Default. Each of the prior Events of Default that have been waived in prior
waivers or amendments to the Credit Agreement that have subsequently been cured
shall not constitute an Event of Default hereunder due to its mere occurrence so
long as it has been cured.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby amended
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as follows:
(a) Section 1.1 is amended by adding or entirely amending the
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following definitions:
"Applicable Base Rate Margin" means 2.000%, provided that the
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Applicable Base Rate Margin shall be decreased to 1.500% as of the first
day of the calendar month following the date the Borrower delivers its
annual financial statements for Fiscal Year 2000 to the Administrative
Agent in accordance with Section 6.2 hereof, if such financial statements
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show EBITDA (plus all fees and expenses incurred in connection with the
restructuring of any Indebtedness of the Borrower and its Subsidiaries
which have been deducted in calculating EBITDA) of greater than
$173,000,000 for such Fiscal Year.
"Applicable LIBOR Rate Margin" means 3.500%, provided that the
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Applicable LIBOR Rate Margin shall be decreased to 3.000% as of the first
day of the calendar month following the date the Borrower delivers its
annual financial statements for Fiscal Year 2000 to the Administrative
Agent in accordance with Section 6.2 hereof, if such financial statements
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show EBITDA (plus all fees and expenses incurred in connection with the
restructuring of any Indebtedness of the Borrower and its Subsidiaries
which have been deducted in calculating EBITDA) of greater than
$173,000,000 for such Fiscal Year.
"Borrowing Base" shall mean, at any time, the sum of (a) 80% of
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Eligible Accounts, plus (b) 45% of Eligible Inventory, each as shown on the
most recent certificate or report delivered to Administrative Agent under
Section 6.10 hereof.
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"Borrowing Base Certificate" means a certificate substantially in the
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form of Exhibit M-1 hereto.
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"Borrowing Base Estimate" means a report substantially in the form of
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Exhibit M-2 hereto.
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"Commitment" means the commitment of the Lenders, subject to the terms
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and conditions hereof, to make Advances or to issue or participate in
Letters of Credit up to an aggregate principal amount of (a) $350,000,000
prior to December 31, 2000, (b) $335,000,000 commencing on December 31,
2000 and continuing through and including September 29, 2001, (c)
$320,000,000 commencing on September 30, 2001 and continuing through and
including December 30, 2001, and (d) $310,000,000, commencing on December
31, 2001, and at all times thereafter, as such amount may be reduced
pursuant to Section 2.6 hereof.
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"EBITDA" means, for any period, determined in accordance with GAAP on
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a consolidated basis for the Borrower and its Subsidiaries, the sum of (a)
Earnings from Operations plus (b) depreciation, amortization and 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)
to the extent included in determining Earnings From Operations.
"Eligible Accounts" means all outstanding accounts of each Obligor
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that are subject to perfected Liens in favor of Administrative Agent and
excluding in all events the portion of any account not paid within 90 days
after the original invoice date.
"Eligible Inventory" means all inventory of each Obligor that is
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subject to perfected Liens in favor of Administrative Agent and excluding
in all events such Obligor's reserves against inventory.
"Fieldcrest Xxxxxx Subordinated Debenture Reserve" means zero.
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"Maturity Date" means January 31, 2002, or the earlier date of
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termination in whole of the Commitment pursuant to Section 2.6 or 8.2
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hereof.
"Revolver Availability" means an amount equal to the result of (a) the
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lesser of (i) the Borrowing Base or (ii) the Commitment, minus (b) the sum
of (i) the outstanding Revolving Credit Advances, plus (ii) the outstanding
Reimbursement Obligations.
(b) The last sentence of Section 2.1(a) is entirely amended, as
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follows:
Notwithstanding any provision of any Loan Document to the contrary, in
no event shall (a) the sum of the principal amount of all outstanding
(i) Revolving Credit Advances and (ii) Reimbursement Obligations
exceed the lesser of (A) the Borrowing Base or (B) the Commitment.
(c) A new sentence is added to Section 2.5(b) immediately following
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the last sentence thereof, as follows:
To the extent that the sum of (i) the outstanding Revolving Credit
Advances plus (ii) the outstanding Reimbursement Obligations ever
exceed the lesser of (A) the Borrowing Base or (B) the Commitment, the
Borrower shall repay any such excess amount and all accrued interest
attributable to such excess within five Business Days after the
Borrower either knows of such excess or receives notice thereof from
the Administrative Agent, whichever first occurs.
(d) Clause (ii) in the first sentence of Section 2.15(a) is entirely
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amended, as follows:
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(ii) an amount equal to (A) the lesser of the Borrowing Base or the
Commitment minus (B) the aggregate principal amount of Revolving
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Credit Advances then outstanding.
(e) Section 3.2(d) is entirely amended, as follows:
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(d) The sum of the principal amount of all outstanding (i)
Revolving Credit Advances and (ii) Reimbursement Obligations, after
giving effect to such proposed Advance or Letter of Credit, shall not
exceed the lesser of (A) the Borrowing Base or (B) the Commitment.
(f) Section 6.8(c) is entirely amended, as follows:
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(c) As soon as available, but in any event no later than Friday
of each week, a good faith estimate of Eligible Accounts and Eligible
Inventory as of the previous Friday.
(g) New Sections 6.9 and 6.10 are hereby added immediately following
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Section 6.8, as follows:
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Section 6.9 Monthly Financial Statements. As soon as available,
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but in any event within 20 Business Days after the end of each Fiscal
Month other than December, and within 45 Business Days after the end
of the Fiscal Month of December, the consolidated balance sheets of
the Borrower and its Subsidiaries as at the end of such Fiscal Month
and the related consolidated statements of earnings for such Fiscal
Month and for the elapsed portion of the year ended with the last day
of such Fiscal Month, and consolidated statements of cash flow for the
elapsed portion of the year ended with the last day of such Fiscal
Month, all of which shall be certified by a Responsible Officer, to,
in his or her opinion acting solely in his or her capacity as an
officer of the Borrower, present fairly in all material respects, in
accordance with GAAP (except for the absence of footnotes), the
financial position and results of operations of the Borrower and its
Subsidiaries as at the end of and for such Fiscal Month, and for the
elapsed portion of the year ended with the last day of such Fiscal
Month, subject only to normal year-end adjustments.
Section 6.10 Borrowing Base Reports.
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(a) As soon as available, but in any event no later than 14
days after the end of each Fiscal Month, a Borrowing Base
Estimate containing a good faith preliminary estimate of the
Borrowing Base as of the end of the previous Fiscal Month.
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(b) As soon as available, but in any event within 20
Business Days after the end of each Fiscal Month, a Borrowing
Base Certificate certifying as to the Borrowing Base as of the
end of the previous Fiscal Month.
(c) As soon as available, but in any event no later than the
last day of each Fiscal Month, a Borrowing Base Estimate
containing a good faith estimate of the Borrowing Base as of the
end of the second week of such Fiscal Month.
(h) Section 7.7 is entirely amended, as follows:
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Section 7.7 Capital Expenditures. The Borrower shall not, and
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shall not permit any of its Subsidiaries to, make or commit to make
any Capital Expenditures in an aggregate amount that exceeds (a) from
January 2, 2000 through and including December 30, 2000, $50,000,000,
provided, however, that no more than $25,000,000 of such permitted
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amount may be expended in any single Fiscal Quarter of the Borrower,
and (b) from December 31, 2000, through and including the Maturity
Date, $30,000,000 plus the amount by which $50,000,000 exceeds actual
Capital Expenditures made from January 2, 2000 through and including
December 30, 2000, provided, however, that no more than $15,000,000 of
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such permitted amount may be expended in any single Fiscal Quarter of
the Borrower.
(i) Clause (c) of Section 7.8 is entirely amended, as follows:
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(c) non-equity consideration paid to any Person in connection with the
redemption, contractual sinking fund payments or restructuring of the
Fieldcrest Xxxxxx Subordinated Debentures (including fees and
expenses); provided, however, the Borrower shall not pay or make any
Restricted Payments permitted by this Section 7.8 unless there shall
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exist no Default or Event of Default prior to or after giving effect
to any such proposed Restricted Payment.
(j) Section 8.1(c) is entirely amended, as follows:
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(c) (i) The Borrower or any Subsidiary shall default in the
performance or observance of any agreement or covenant
contained in Article 7 hereof; or
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(ii) The Borrower or any Subsidiary shall default in the
performance or observance of any agreement or covenant
contained in Section 6.10 hereof and such default shall not
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be cured within two days after the earlier of notice from
the Administrative Agent thereof or actual notice thereof by
a Responsible Officer of the Borrower;
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(k) New Exhibits M-1 and M-2 are added in the form of, and all
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references in the Credit Agreement to Exhibits M-1 and M-2 are hereby
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deemed to be references to, the attached Exhibits M-1 and M-2.
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(l) Exhibits D and G are amended and restated in the form of, and all
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references in the Credit Agreement to Exhibits D and G are hereby deemed to
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be references to, the attached Exhibits D and G.
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3. FINANCIAL COVENANTS. Notwithstanding anything contained in the Credit
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Agreement or any other Loan Document, the Borrower shall not be obligated to
comply, and the Lenders hereby waive compliance by the Borrower, with the
covenants set forth in Sections 7.11, 7.12 and 7.13 of the Credit Agreement with
respect to any relevant period ending on or after January 1, 2000; provided,
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however, that, in lieu of such covenants, the Borrower will not permit EBITDA
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(plus all fees and expenses incurred in connection with the restructuring of any
Indebtedness of the Borrower and its Subsidiaries which have been deducted in
calculating EBITDA) for the periods set forth below to be less than the amount
set forth opposite each such period:
Period Amount
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3 months ended 4/1/00 $ 26,000,000
6 months ended 7/1/00 $ 59,000,000
9 months ended 9/30/00 $105,000,000
12 months ended 12/30/00 $147,000,000
12 months ended 3/31/01 $147,000,000
12 months ended 6/30/01 $160,000,000
12 months ended 9/29/01 $170,000,000
12 months ended 12/29/01 $180,000,000
4. AMENDMENT FEE. Borrower shall pay to the Administrative Agent, for the
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pro rata benefit of the Lenders that execute and deliver this Amendment to the
Administrative Agent (or its counsel) not later than 5:00 p.m., Dallas time,
March 30, 2000, an amendment fee in an amount equal to the product of (a) 0.25%
multiplied by (b) an amount equal to such Lender's portion of the Commitment.
Such amendment fee shall be paid in immediately available funds and shall be
payable only if the conditions set forth in Section 8 of this Amendment have
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been satisfied and shall be due and payable to each Lender eligible for payment
pursuant to the preceding sentence no later than two Business Days after the
conditions set forth in Section 8 of this Amendment have been satisfied. The
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Borrower agrees that the failure to pay the amendment fee provided in this
Section 4 shall, after the expiration of any applicable grace period, be an
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Event of Default under Section 8.1(b)(ii) of the Credit Agreement.
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5. COLLATERAL REDUCTION FEE. Within 30 Business Days after the Payment
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Date (as defined below) with respect to any cash consideration in excess of
$10,000,000, in the aggregate, paid or to be paid on or before January 31, 2002
to any Person in connection with the restructuring of the Fieldcrest Xxxxxx
Subordinated Debentures (including fees and expenses),
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Borrower shall pay to the Administrative Agent, for the benefit of the Revolving
Lenders (as defined in the Intercreditor Agreement) and the Term Lenders (as
defined in the Intercreditor Agreement), each of whom shall receive their Pro
Rata (as defined in the Intercreditor Agreement) share thereof, a fee equal to
20% of such excess amount multiplied by a fraction, the numerator of which is
the number of days from the Payment Date through and including January 31, 2002,
and the denominator of which is 360. For purposes hereof, "Payment Date" shall
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mean the earlier of (a) the date upon which actual cash payment is made or (b)
the date upon which the Borrower or any of its Subsidiaries becomes obligated to
make such payment. So long as no Event of Default has occurred and is
continuing, the Borrower and its Subsidiaries shall be permitted to make all
scheduled payments of principal and interest provided for under the documents
evidencing the Subordinated Debt.
6. RELEASE.
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(a) The Borrower and each Guarantor hereby unconditionally and
irrevocably remises, acquits, and fully and forever releases and discharges
the Administrative Agent and the Lenders and all respective affiliates and
subsidiaries of the Administrative Agent and the Lenders, their respective
officers, servants, employees, agents, attorneys, financial advisors,
principals, directors and shareholders, and their respective heirs, legal
representatives, successors and assigns (collectively, the "Released Lender
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Parties") from any and all claims, demands, causes of action, obligations,
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remedies, suits, damages and liabilities (collectively, the "Borrower
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Claims") of any nature whatsoever, whether now known, suspected or claimed,
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whether arising under common law, in equity or under statute, which the
Borrower or any Guarantor ever had or now has against the Released Lender
Parties which may have arisen at any time on or prior to the date of this
Amendment and which were in any manner related to any of the Loan Documents
or the enforcement or attempted enforcement by the Administrative Agent or
the Lenders of rights, remedies or recourses related thereto.
(b) The Borrower and each Guarantor covenants and agrees never to
commence, voluntarily aid in any way, prosecute or cause to be commenced or
prosecuted against any of the Released Lender Parties any action or other
proceeding based upon any of the Borrower Claims which may have arisen at
any time on or prior to the date of this Amendment and were in any manner
related to any of the Loan Documents.
(c) The agreements of the Borrower and each Guarantor set forth in
this Section 6 shall survive termination of this Amendment and the other
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Loan Documents.
7. REPRESENTATIONS AND WARRANTIES. By its execution and delivery hereof,
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the Borrower represents and warrants to the Lenders that, as of the date hereof:
(a) after giving effect to the waiver set forth in Section 1 of this
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Amendment, the representations and warranties contained in the Credit
Agreement and the other Loan
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Documents are true and correct on and as of the date hereof as if made on
and as of such date;
(b) after giving effect to the waiver set forth in Section 1 of this
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Amendment, no event has occurred and is continuing which constitutes an
Event of Default;
(c) the Borrower has full power and authority to execute and deliver
this Amendment, and this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms,
except as enforceability may be limited by applicable Debtor Relief Laws
and by general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except as rights to
indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this Amendment
nor the consummation of any transactions contemplated herein will conflict
with any Law, the articles of incorporation, bylaws or other governance
document of the Borrower or any of its Subsidiaries, or any indenture,
agreement or other instrument to which the Borrower or any of its
Subsidiaries or any of their respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice
to, or filing with, any governmental authority or other Person (including
the Board of Directors of the Borrower or any Guarantor), is required for
the execution, delivery or performance by the Borrower of this Amendment or
the acknowledgment of this Amendment by any Guarantor.
8. CONDITIONS OF EFFECTIVENESS. This Amendment shall be effective as of
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March 31, 2000, so long as each of the following conditions precedent shall have
been satisfied:
(a) the Administrative Agent shall receive counterparts of (i) this
Amendment and (ii) the Waiver and Seventh Amendment to Term Credit Agreement,
each executed by the Required Lenders (as defined in the Intercreditor
Agreement) and the Borrower and acknowledged by each Guarantor;
(b) the Administrative Agent shall receive counterparts of the Fifth
Amendment to Promissory Note, executed by the Borrower and Bank of America,
N.A., extending the maturity of the Overline Facility to the Maturity Date;
(c) the representations and warranties set forth in Section 7 of this
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Amendment shall be true and correct;
(d) all reasonable out-of-pocket fees and expenses in connection with the
Loan Documents, including this Amendment, including legal and other professional
fees and expenses incurred on or prior to the date of this Amendment by
Administrative Agent or any Lender,
-8-
including, without limitation, the reasonable fees and expenses of Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C., Xxxxxxx Xxxxxxx & Xxxxxxx and PricewaterhouseCoopers,
shall have been paid; and
(e) the Administrative Agent shall receive, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall reasonably
require.
9. GUARANTOR ACKNOWLEDGMENT. By signing below, each of the Guarantors (i)
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acknowledges, consents and agrees to the execution and delivery of this
Amendment, (ii) acknowledges and agrees that its obligations in respect of its
Subsidiary Guaranty are not released, diminished, waived, modified, impaired or
affected in any manner by this Amendment or any of the provisions contemplated
herein, (iii) ratifies and confirms its obligations under its Subsidiary
Guaranty, and (iv) acknowledges and agrees that it has no claims or offsets
against, or defenses or counterclaims to, its Subsidiary Guaranty as a result of
this Amendment.
10. BANK OF AMERICA CONSENT. Bank of America, N.A., in its capacity as
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provider of the Overline Facility, hereby (i) agrees to this Amendment and
acknowledges that the waivers provided herein shall also be effective with
respect to the Overline Facility, and (ii) acknowledges that the maturity date
of the Overline Facility has been extended to the Maturity Date.
11. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this
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Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the Credit
Agreement, as affected and amended by this Amendment.
12. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Amendment may be executed
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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. This Amendment
may be validly executed and delivered by facsimile or other electronic
transmission.
13. GOVERNING LAW: BINDING EFFECT. This Amendment shall be governed by
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and construed in accordance with the laws of the State of Texas and shall be
binding upon the Borrower, the Administrative Agent, each Lender and their
respective successors and assigns.
14. HEADINGS. Section headings in this Amendment are included herein for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
15. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to
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all provisions of the Credit Agreement applicable to Loan Documents, all of
which are incorporated in this Amendment by reference the same as if set forth
in this Amendment verbatim.
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16. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
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DOCUMENTS 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.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as the
date first above written.
PILLOWTEX CORPORATION
Xxxxx Xxxxxxx
Vice President and Treasurer
BANK OF AMERICA, N.A. (formerly known as
NationsBank, N.A., successor by merger to
NationsBank of Texas, N.A.), as Administrative
Agent and as a Lender, Swing Line Bank and Issuing
Bank
THE BANK OF NOVA SCOTIA
ATLANTA AGENCY
THE FIRST NATIONAL BANK OF CHICAGO
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
BANKBOSTON, N.A.
COMERICA BANK
CREDIT LYONNAIS - NEW YORK BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD.
BANK ONE, TEXAS, N.A.
BHF (USA) CAPITAL CORPORATION
FIRST UNION NATIONAL BANK
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
THE BANK OF NEW YORK
CREDIT INDUSTRIEL ET COMMERCIAL
Waiver and Seventh Amendment to Amended and Restated Credit Agreement
Signature Page
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
FLEET BANK, N.A.
THE FUJI BANK, LTD.
NATIONAL BANK OF CANADA
NATIONAL CITY BANK OF KENTUCKY
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
BANK POLSKA KASA OPIEKI, S.A., NEW YORK
BRANCH
GUARANTY FEDERAL BANK, F.S.B.
GENERAL ELECTRIC CAPITAL CORPORATION
SOCIETE GENERALE, SOUTHWEST AGENCY
CONSENTED TO BY:
KZH WATERSIDE LLC
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
AERIES FINANCE-II LTD.
BY: INVESCO Senior Secured Management, Inc.
as Sub-Managing Agent
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager
Waiver and Seventh Amendment to Amended and Restated Credit Agreement
Signature Page
CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First Allmerica
Financial Life Insurance Company as Portfolio Manager
XXX XXXXXX CLO I, LIMITED
By: XXX XXXXXX MANAGEMENT, INC.,
as Collateral Manager
BALANCED HIGH-YIELD FUND I LTD.
By: BHF (USA) CAPITAL CORPORATION, acting as
attorney-in-fact
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: INDOSUEZ CAPITAL as Portfolio Advisor
XXX XXXXXX SENIOR INCOME TRUST
By:
---------------------------
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital as Portfolio Advisor
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTree Investment Management
Company, Inc., its Managing Member
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc., its Managing Member
KZH CYPRESSTREE-1 LLC
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management, as
Investment Advisor
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management, as
Investment Advisor
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Management, Inc.,
as Collateral Manager
CAPTIVA FINANCE, LTD.
Waiver and Seventh Amendment to Amended and Restated Credit Agreement
Signature Page
BALANCED HIGH-YIELD FUND II LTD.
By: BHF (USA) CAPITAL CORPORATION,
acting as attorney-in-fact
FINOVA CAPITAL CORPORATION
THE DAI-ICHI KANGYO BANK
LIMITED, NEW YORK BRANCH
Waiver and Seventh Amendment to Amended and Restated Credit Agreement
Signature Page
MOUNTAIN CAPITAL CLO I LTD.
MARINER LDC
XXXXXX COMMERCIAL PAPER, INC.
PRESIDENT & FELLOWS OF HARVARD COLLEGE
By: Regiment Capital Management, LLC,
as its Investment Advisor
By: Regiment Capital Advisors, LLC,
its Manager and pursuant to delegated authority
ACKNOWLEDGED AND AGREED:
PILLOWTEX, INC.
PTEX HOLDING COMPANY
PILLOWTEX MANAGEMENT SERVICES COMPANY
BEACON MANUFACTURING COMPANY
XXXXXXX HOME FASHIONS, INC.
TENNESSEE WOOLEN XXXXX
FIELDCREST XXXXXX, INC.
CRESTFIELD COTTON COMPANY
ENCEE, INC.
FCC CANADA, INC.
FIELDCREST XXXXXX FINANCING, INC.
FIELDCREST XXXXXX LICENSING, INC.
FIELDCREST XXXXXX INTERNATIONAL, INC.
FIELDCREST XXXXXX XX, INC. (formerly known as Fieldcrest Xxxxxx Sure Fit, Inc.)
FIELDCREST XXXXXX TRANSPORTATION, INC.
ST. MARYS, INC.
AMOSKEAG COMPANY
AMOSKEAG MANAGEMENT CORPORATION
DOWNEAST SECURITIES CORPORATION
BANGOR INVESTMENT COMPANY
XXXXX'X FALLS CORPORATION
THE XXXXXXX CORPORATION
XXXXXXX OF CALIFORNIA, INC.
OPELIKA INDUSTRIES, INC.
Xxxxx Xxxxxxx
Vice President and Treasurer
Waiver and Seventh Amendment to Amended and Restated Credit Agreement
Signature Page
EXHIBIT D
COMPLIANCE CERTIFICATE
----------------------
To: Bank of America, N.A., as Administrative Agent
From: Pillowtex Corporation
Date: , .
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Re: Amended and Restated Credit Agreement, dated as of December 19, 1997 (as
amended, the "Credit Agreement"), among Pillowtex Corporation ( the
"Borrower"), certain Lenders, and Bank of America, N.A., as Administrative
Agent
This Compliance Certificate is delivered pursuant to Section 6.3 of the
Credit Agreement. All capitalized terms used herein and defined in the Credit
Agreement shall be used as so defined. For purposes hereof, section references
herein related to sections of the Credit Agreement and bracketed amounts or
ratios refer to the maximum or minimum amounts or ratios required under the
relevant sections of the Credit Agreement.
I. EBITDA Covenant Calculation
---------------------------
EBITDA, calculated for the ____________________ /1/ period
ending on the date of calculation
1. Earnings from Operations $
-------------
2. Depreciation $
-------------
3. Amortization $
-------------
4. 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) to the
extent included in determining Earnings
from Operations $
-------------
5. EBITDA [(1) + (2) + (3) + (4)] $
-------------
6. Fees and expenses incurred
in connection with the restructuring of
-----------------------
/1/ See Table 1
Indebtedness $
------------
7. Adjusted EBITDA [(5) + (6)] $
------------
8. Minimum Required $ 1
------------
II. Certain Other Covenant Calculations. Demonstration of compliance with
certain covenants contained in Article 7 of the Credit Agreement for the
period ended .
------------------------------------------------------------
(a) Section 7.1(c). Indebtedness of the Borrower and $
--------------- ------------
its Domestic Subsidiaries, including in respect of
Capitalized Lease Obligations, incurred to purchase,
or to finance the purchase of, assets which
constitute property, plant and equipment
1. Maximum in aggregate principal amount $35,515,000
outstanding, when aggregated with
Section 7.1(o)
--------------
2. Actual $
------------
3. Difference [(1) - (2)] $
------------
(b) Section 7.1(o) Other Indebtedness of the Borrower and
--------------
its Domestic Subsidiaries
1. Maximum in aggregate principal amount $35,515,000
Outstanding, when aggregated with
Section 7.1(c)
--------------
2. Actual $
------------
3. Difference [(1) - (2)] $
------------
(c) Section 7.5(c) Net Cash Proceeds from the disposition of
--------------
assets (to the extent not applied pursuant to Section
-------
2.5(b)) outstanding and pending reinvestment pursuant to
-------
Section 7.5(c)
--------------
1. Maximum at any Time $1,000,000
2. Actual $
------------
3. Difference [(1) - (2)] $
------------
(d) Section 7.7 Capital Expenditures
-----------
1. Actual amount expended previous quarter $
------------
/2/
2. Maximum Allowed $
------------
3. Difference [(1) - (2)] $
------------
4. Actual amount expended since January 2, 2000
or December 31, 2000, whichever is most
recent relativeto end of previous quarter $
------------
/3/
5. Maximum Allowed $
------------
6. Difference [(4) - (5)] $
------------
III. Tables.
-------
Table 1
-------
Period Minimum Required
------ ----------------
3 months ended 4/1/00 $ 26,000,000
6 months ended 7/1/00 $ 59,000,000
9 months ended 9/30/00 $105,000,000
12 months ended 12/30/00 $147,000,000
12 months ended 3/31/01 $147,000,000
12 months ended 6/30/01 $160,000,000
12 months ended 9/29/01 $170,000,000
12 months ended 12/29/01 $180,000,000
Table 2
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For Quarters Ending Maximum Allowed
-------------------- ---------------
4/1/00, 7/1/00, 9/30/00,
and 12/30/00 $ 25,000,000
3/31/01, 6/30/01, 9/29/01,
and 12/29/01 $ 15,000,000
Table 3
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Period Maximum Allowed
------- ---------------
1/2/00 through 12/30/00 $ 50,000,000
12/31/00 through 1/31/02 $30,000,000 plus the amount by
which $50,000,000 exceeds actual
-------------------
/2/ See Table 2
/3/ See Table 3
expenditures made from 1/2/00
through 12/30/00
IV. Compliance Certificate. The undersigned hereby certifies to you as
----------------------
follows:
(a) I am the duly elected qualified and acting chief financial officer [or
chief accounting officer] of the Borrower.
(b) I have reviewed the provisions of the Credit Agreement and the other
Loan Documents, and a review of the activities of Borrower during the
period from _______________________, ______ to ______________________,
_______ (the "Reporting Period") has been made under my supervision
with a view toward determining whether, during the Reporting Period,
the Borrower has kept, observed, performed and fulfilled all its
obligations under the Credit Agreement and such other Loan Documents.
(c) The representations and warranties made in the Loan Documents are true
and correct in all material respects as of the date hereof as though
made at and as of the date hereof, except for such representations and
warranties which relate to a particular date or which fail to be true
and correct as a result of events or occurrences permitted under the
Loan Documents, and no Default or Event of Default has occurred or is
continuing.
This Compliance Certificate is executed and delivered on the ________ day
of ________________, _______.
PILLOWTEX CORPORATION
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT G
NOTICE OF BORROWING
-------------------
Bank of America, N.A., as
the Administrative Agent
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Oxford
Re: Pillowtex Corporation
---------------------
Ladies and Gentlemen:
The undersigned, an Authorized Signatory of Pillowtex Corporation, pursuant
to the Amended and Restated Credit Agreement, dated as of December 19, 1997,
among the undersigned, the financial institutions party thereto and Bank of
America, N.A., as the Administrative Agent (said Agreement, as it may be
amended, supplemented or otherwise modified from time to time, being the "Credit
Agreement" and capitalized terms not defined herein but defined therein being
used herein as therein defined), hereby gives you notice, irrevocably, pursuant
to Section 2.2 of the Credit Agreement, that the undersigned hereby requests a
Revolving Credit Advance under the Credit Agreement, and in that connection sets
forth below the information relating to such borrowing (the "Proposed
Borrowing") as required by Section 2.2 of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ____________________,
_______.
(ii) The aggregate amount of the Revolving Credit Advances constituting the
Proposed Borrowing is $______________, of which amount
$________________ consists of Base Rate Advances,
$_____________________ consists of LIBOR Rate Advances having an
initial Interest Period of ___________ months.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(A) the representations and warranties of the Borrower contained in Article
4 of the Credit Agreement and in each of the other Loan Documents to which
it is a party (other than those representations and warranties that
specifically relate to an earlier date) are true and correct as though made
on and as of such date, except as otherwise expressly provided in Section
4.2 of the Credit Agreement;
(B) the sum of the principal amount of all outstanding (i) Revolving Credit
Advances and (ii) Reimbursement Obligations does not exceed the lesser of
(a) the Borrowing Base or (b) the Commitment; and
(C) no Default or Event of Default is continuing, or will result from the
Proposed Borrowing.
Very truly yours,
PILLOWTEX CORPORATION
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT M-1
-----------
BORROWING BASE CERTIFICATE
--------------------------
ADMINISTRATIVE AGENT: Bank of America, N.A. Date:_______________
BORROWER: Pillowtex Corporation
This Borrowing Base Certificate, prepared as of ___________, is executed
and delivered by Borrower pursuant to that certain Amended and Restated Credit
Agreement dated as of December 19, 1997 among the Borrower, each of the banks or
other lending institutions which is or may from time to time become a signatory
thereto and any successors or permitted assigns thereof ("Lenders") and
-------
Administrative Agent (as amended, supplemented or modified from time to time,
the "Credit Agreement"). All terms used herein shall have the meanings assigned
----------------
to them in the Credit Agreement.
Borrower represents and warrants to Administrative Agent that all
information contained herein is true, correct, and complete, and that the total
Eligible Accounts and total Eligible Inventory referred to below represent the
Eligible Accounts and Eligible Inventory that qualify for purposes of
determining the Borrowing Base under the Credit Agreement.
ELIGIBLE ACCOUNTS OF THE OBLIGORS:
1. Accounts (ending balance for period ended ____________, 20__) $_________
2. Less: Accounts or any portion of any account not paid
within 90 days after original date of invoice................ $_________
3. Total Eligible Accounts (Line 1 minus Line 2) ............... $_________
ELIGIBLE INVENTORY OF THE OBLIGORS:
4. All inventory................................................ $_________
5. Less: Reserves against inventory............................. $_________
6. Total Eligible Inventory (Line 4 minus Line 5)............... $_________
BORROWING BASE:
7. Total Eligible Accounts (Line 3)............................. $_________
8. Total Eligible Inventory (Line 6)............................ $_________
9. 80% of Line 7................................................ $_________
10. 45% of Line 8................................................ $_________
11. Borrowing Base: Sum of Lines 9 and 10........................ $_________
12. Commitment as of the date of this certificate................ $_________
13. Lesser of Line 11 or Line 12................................. $_________
14. Outstanding Revolving Credit Advances........................ $_________
15. Outstanding Reimbursement Obligations........................ $_________
16. Revolving Availability or amount to be paid if negative
[(Line 13 minus Line 14 minus Line 15].................... $_________
Date: _______________ PILLOWTEX CORPORATION
By:
------------------------------------
Name:
------------------------------
Title:
------------------------------
____________________________
/4/
Must be a Responsible Officer of the Borrower
EXHIBIT M-2
-----------
BORROWING BASE ESTIMATE
-----------------------
ADMINISTRATIVE AGENT: Bank of America, N.A. Date:_______________
BORROWER: Pillowtex Corporation
This Borrowing Base Estimate, prepared as of ___________, is executed and
delivered by Borrower pursuant to that certain Amended and Restated Credit
Agreement dated as of December 19, 1997 among the Borrower, each of the banks or
other lending institutions which is or may from time to time become a signatory
thereto and any successors or permitted assigns thereof ("Lenders") and
-------
Administrative Agent (as amended, supplemented or modified from time to time,
the "Credit Agreement"). All terms used herein shall have the meanings assigned
----------------
to them in the Credit Agreement.
Borrower represents and warrants to Administrative Agent that the total
Eligible Accounts and total Eligible Inventory referred to below represent the
Borrower's good faith estimate of the Eligible Accounts and Eligible Inventory
that qualify for purposes of determining the Borrowing Base under the Credit
Agreement. Such estimates have been prepared based on all information available
to the Borrower at the time of preparation of this report and, to the best of
the Borrower's knowledge based on such information, are true, correct, and
complete.
ELIGIBLE ACCOUNTS OF THE OBLIGORS:
1. Accounts (ending balance for period ended ____________, 20__) $_________
2. Less: Accounts or any portion of any account not paid
within 90 days after original date of invoice................ $_________
3. Total Eligible Accounts (Line 1 minus Line 2) ............... $_________
ELIGIBLE INVENTORY OF THE OBLIGORS:
4. All inventory................................................ $_________
5. Less: Reserves against inventory............................. $_________
6. Total Eligible Inventory (Line 4 minus Line 5)............... $_________
BORROWING BASE:
7. Total Eligible Accounts (Line 3)............................. $_________
8. Total Eligible Inventory (Line 6)............................ $_________
9. 80% of Line 7................................................ $_________
10. 45% of Line 8................................................ $_________
11. Borrowing Base: Sum of Lines 9 and 10........................ $_________
12. Commitment as of the date of this estimate................... $_________
13. Lesser of Line 11 or Line 12................................. $_________
14. Outstanding Revolving Credit Advances........................ $_________
15. Outstanding Reimbursement Obligations........................ $_________
16. Revolving Availability or amount to be paid if negative
[(Line 13 minus Line 14 minus Line 15]....................... $_________
Date: _______________ PILLOWTEX CORPORATION
By:
---------------------------------
Name:
------------------------------
Title:
------------------------------
____________________________
/5/
Must be a Responsible Officer of the Borrower
