Exhibit 10.23
CONSENT
THIS CONSENT (this "Consent"), dated as of the 15th day of February, 2000,
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between PILLOWTEX CORPORATION, a Texas corporation (the "Borrower"), and BANK OF
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AMERICA, N.A. (formerly known as NationsBank, N.A.) ("Lender").
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BACKGROUND
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A. The Borrower executed that certain Promissory Note, dated May 4,1999,
in the original principal amount of $20,000,000 and increased by amendment to
$35,000,000 (said Promissory Note, as amended, the "Promissory Note"; terms
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defined in the Promissory Note and not otherwise defined herein shall be used
herein as defined in the Promissory Note).
B. Article IV of the Promissory Note incorporates by reference Articles 5
(except for Section 5.8), 6 and 7 of the Credit Agreement and all definitions
thereto, and provides that no waiver with respect to such Articles of the Credit
Agreement after May 4, 1999 shall be effective without the written consent of
the Lender.
C. The Borrower is entering into a Sixth Amendment and Waiver to Amended
and Restated Credit Agreement, dated to be effective as of February 15, 2000,
with the lenders party thereto and Bank of America, N.A., as administrative
agent (the "Sixth Amendment"), which Sixth Amendment, among other things,
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temporarily waives certain provisions of Article 7 of the Credit Agreement.
D. The Borrower has requested that the Lender execute this Consent.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
1. CONSENT. The Lender hereby consents to the Sixth Amendment.
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2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
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execution and delivery hereof, the Borrower represents and warrants that, as of
the date hereof and after giving effect to the Consent set forth in the
foregoing Section 1:
(a) the representations and warranties contained in the Promissory Note are
true and correct on and as of the date hereof as made on and as of such date;
and
(b) no event has occurred and is continuing which constitutes an Event of
Default.
3. CONDITIONS OF EFFECTIVENESS. This Consent shall be effective as of
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February 15, 2000, subject to the following:
(a) the representations and warranties set forth in Section 2 of this
Consent shall be true and correct;
(b) the Lender shall have received counterparts of this Consent executed by
the Borrower and acknowledged by each Guarantor; and
(c) the Lender shall have received in form and substance satisfactory to
the Lender, such other documents, certificates and instruments as the Lender
shall require.
4. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each Guarantor (i)
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acknowledges, consents and agrees to the execution, delivery and performance by
the Borrower of this Consent, (ii) acknowledges and agrees that its obligations
in respect of its Guaranty Agreement are not released, diminished, waived,
modified, impaired or affected in any manner by this Consent, or any of the
provisions contemplated herein, (iii) ratifies and confirms its obligations
under its Guaranty Agreement, and (iv) acknowledges and agrees that it has no
claim or offsets against, or defenses or counterclaims to, its Guaranty
Agreement as a result of this Consent.
5. REFERENCE TO THE PROMISSORY NOTE.
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(a) Upon the effectiveness of this Consent, each reference in the
Promissory Note to "this Note", "hereunder", or words of like import shall mean
and be a reference to the Promissory Note, as affected by this Consent.
(b) The Promissory Note, as affected by this Consent, shall remain in full
force and effect and is hereby ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. The Borrower shall be obligated to pay the
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costs and expenses of the Lender in connection with the preparation,
reproduction, execution and delivery of this Consent and the other instruments
and documents to be delivered hereunder.
7. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Consent may be executed in
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any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which when taken together shall constitute but one and
the same instrument. This Consent may be validly executed and delivered by
facsimile or other electronic transmission.
8. GOVERNING LAW; BINDING EFFECT. This Consent shall be governed by and
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construed in accordance with the laws of the State of Texas, and shall be
binding upon the Borrower and each Lender and their respective successors and
assigns.
9. HEADINGS. Section headings in this Consent are included herein for
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convenience of reference only and shall not constitute a part of this Consent
for any other purpose.
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10. ENTIRE AGREEMENT. THE PROMISSORY NOTE, AS AMENDED BY THIS CONSENT,
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REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT MATTER
THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have executed this Consent as of the
date first above written.
PILLOWTEX CORPORATION
By: Xxxxx Xxxxxxx
Title: Vice President/Treasurer
BANK OF AMERICA, N.A. (formerly known as
NationsBank, N.A.)
By:
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Name:
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Title:
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Consent
Signature Page
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 know 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.
By: Xxxxx Xxxxxxx
Title: Vice President/Treasurer
Consent
Signature Page
