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EXHIBIT 4(c)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of March 26, 1998 among FRUIT OF THE LOOM, INC., a Delaware corporation
(the "Borrower"), certain Subsidiaries of the Borrower as Guarantors, the
Lenders party hereto and NATIONSBANK, N.A., as Administrative Agent for the
Lenders (the "Administrative Agent"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Credit
Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent entered into that certain Credit Agreement, dated as of
September 19, 1997, whereby the Lenders provided to the Borrower a $900 million
credit facility (as amended or modified from time to time, the "Credit
Agreement");
WHEREAS, the Borrower has proposed a reorganization of its ownership
structure, as set forth in the Form S-4 filed with the Securities and Exchange
Commission on February 10, 1998, whereby, among other things, Fruit of the Loom,
Ltd., a Cayman Islands corporation will become the owner of all of the shares of
the common stock of the Borrower (the "Reorganization");
WHEREAS, the Borrower has requested that the Lenders (a) consent to the
Reorganization and (b) amend certain terms and conditions of the Credit
Agreement as more fully described below; and
WHEREAS, the required Lenders have agreed to consent to the terms of
the Reorganization and amend certain terms of the Credit Agreement, subject to
the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Definitions.
(a) The following definitions are added to Section 1.1 of the
Credit Agreement in the appropriate alphabetical order:
"Parent" means Fruit of the Loom, Ltd., a Cayman
Islands company.
"Reorganization" means the proposed reorganization of
the Borrower and its Subsidiaries whereby, among other things,
the Parent will become the owner of all of the common shares
of the Borrower, as more fully described in the Form S-
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Commission on February 10, 1998.
(b) The pricing grid set forth in the definition of
"Applicable Percentage" in Section 1.1 of the Credit Agreement is
amended and restated in its entirety to read as follows:
Applicable Applicable
Unsecured Percentage Percentage for
Pricing Leverage Senior for Revolving-A Revolving-B Applicable
Level Ratio Debt Eurocurrency Eurocurrency Percentage for
Rating Loans Loans Term Loans
I N/A => BBB+ .250% .275% .35%
from S&P or
Baa1 from
Xxxxx'x
II N/A => BBB from .325% .350% .45%
S&P or Baa2
from Xxxxx'x
but < BBB+
from S&P or
Baa1 from
Xxxxx'x
III => 2.0 to => BBB- .40% .425% .55%
1.0 but < from S&P or
2.5 to 1.0 Baa3 from
Xxxxx'x but
< BBB from
S&P or Baa2
from Xxxxx'x
IV => 2.5 to => BB+ from .55% .60% .75%
1.0 but < S&P or Ba1
3.25 to 1.0 from
Xxxxx'x but
< BBB- from
S&P or Baa3
from Xxxxx'x
V => 3.25 to => BB from .75% .80% 1.00%
1.0 but < S&P or Ba2
4.0 to 1.0 from
Xxxxx'x but
< BB+ from
S&P or Ba1
from Xxxxx'x
VI => 4.0 to 1.0 <= BB- from 1.00% 1.125% 1.375%
S&P or Ba3
from Xxxxx'x
Applicable Applicable
Pricing Percentage for Percentage for Applicable
Level Revolving-A Revolving-B Percentage For
Facility Fees Facility Fees Base Rate Loans
I .10% .075% 0%
II .125% .10% 0%
III .15% .125% 0%
IV .20% .15% 0%
V .25% .20% 0%
VI .375% .25% 0%
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(c) The definition of "Change of Control" in Section 1.1 of
the Credit Agreement is amended and restated in its entirety to read as
follows:
"Change of Control" means:
(a) prior to the Reorganization, any of the following
events: (i) other than as a result of the share repurchases
permitted pursuant to Sections 7.10(e) and 8.8(iii), any
"person" or "group" (within the meaning of Section 13(d) or
14(d) of the Exchange Act) has become, directly or indirectly,
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed
to have "beneficial ownership" of all shares that any such
Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), by
way of merger, consolidation or otherwise, of 35% or more of
the voting power of the Voting Stock of the Borrower on a
fully-diluted basis, after giving effect to the conversion and
exercise of all outstanding warrants, options and other
securities of the Borrower (whether or not such securities are
then currently convertible or exercisable), or (ii) during any
period of two consecutive calendar years, individuals who at
the beginning of such period constituted the board of
directors of the Borrower cease for any reason to constitute a
majority of the directors of the Borrower then in office
unless such new directors were elected by the directors of the
Borrower who constituted the board of directors of the
Borrower at the beginning of such period.
(b) subsequent to the Reorganization, any of the
following events: (i) the Parent fails to own 100% of the
Voting Stock of the Borrower, (ii) other than as a result of
the share repurchases permitted pursuant to Sections 7.10(e)
and 8.8(iii), any "person" or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) has become,
directly or indirectly, the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all
shares that any such Person has the right to acquire, whether
such right is exercisable immediately or only after the
passage of time), by way of merger, consolidation or
otherwise, of 35% or more of the voting power of the Voting
Stock of the Parent on a fully-diluted basis, after giving
effect to the conversion and exercise of all outstanding
warrants, options and other securities of the Parent (whether
or not such securities are then currently convertible or
exercisable), or (iii) during any period of two consecutive
calendar years, individuals who at the beginning of such
period constituted the board of directors of the Parent cease
for any reason to constitute a majority of the directors of
the Parent then in office unless such new directors were
elected by the directors of the Parent who constituted the
board of directors of the Parent at the beginning of such
period.
(d) The definition of "EBIT" in Section 1.1 of the Credit
Agreement is amended by adding the following clauses at the end of such
definition:
,(vi) cash charges incurred during the fourth fiscal
quarter of 1997 not to exceed $126 million in the aggregate
and (vii) noncash charges incurred during the fourth fiscal
quarter of 1997 not to exceed $338 million in the aggregate.
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(e) The definition of "Fixed Charge Coverage Ratio" in Section
1.1 of the Credit Agreement is amended and restated in its entirety to
read as follows:
"Fixed Charge Coverage Ratio" means the ratio of (a)
EBITDA minus Capital Expenditures to (b) Interest Expense plus
Scheduled Funded Debt Payments plus, subsequent to the
Reorganization, dividends paid on preferred stock of the
Borrower.
(f) Clause (o) of the definition of Permitted Investments in
Section 1.1 of the Credit Agreement is amended and restated in its
entirety as follows:
(o) other Investments not to exceed, in the
aggregate, $25,000,000 at any one time outstanding.
2. Information Covenants. Subsequent to the Reorganization, all
references to the "Borrower" in Sections 7.1(a), 7.1(b) and 7.1(e) of the Credit
Agreement shall instead be references to the "Parent".
3. Financial Covenants. Section 7.2 of the Credit Agreement is amended
and restated in its entirety to read as follows:
As of the end of each fiscal quarter set forth below, the
Leverage Ratio, Interest Coverage Ratio and Fixed Charge Coverage Ratio
shall satisfy the following minimum and maximum requirements:
Minimum Fixed
Minimum Interest Charge Coverage
Coverage Ratio Ratio
Maximum (for the twelve-month (for the twelve-month
Fiscal Quarter Ending: Leverage Ratio period ending on such date) period ending on such date)
---------------------- -------------- --------------------------- ---------------------------
September 30, 1997 4.0 to 1.0 1.75 to 1.0 2.0 to 1.0
December 31, 1997 4.5 to 1.0 1.50 to 1.0 2.0 to 1.0
March 31, 1998 5.5 to 1.0 1.25 to 1.0 2.0 to 1.0
June 30, 1998 5.0 to 1.0 1.50 to 1.0 2.0 to 1.0
September 30, 1998 4.0 to 1.0 2.00 to 1.0 2.0 to 1.0
December 31, 1998 3.5 to 1.0 2.50 to 1.0 2.25 to 1.0
March 31, 1999 3.5 to 1.0 3.0 to 1.0 2.25 to 1.0
June 30, 1999 3.5 to 1.0 3.0 to 1.0 2.25 to 1.0
September 30, 1999 3.25 to 1.0 3.0 to 1.0 2.25 to 1.0
December 31, 1999 3.25 to 1.0 3.0 to 1.0 2.25 to 1.0
March 31, 2000 3.25 to 1.0 3.0 to 1.0 2.25 to 1.0
June 30, 2000 3.25 to 1.0 3.0 to 1.0 2.25 to 1.0
September 30, 2000 3.0 to 1.0 3.0 to 1.0 2.25 to 1.0
December 31, 2000 3.0 to 1.0 3.0 to 1.0 2.25 to 1.0
and thereafter
4. Use of Proceeds. Clause (a) of Section 7.10 of the Credit Agreement
is amended and restated in its entirety as follows:
(a) (i) to refinance existing Indebtedness owing under the
Existing Credit Agreement and at maturity other existing Indebtedness
described on Schedule 6.10, (ii) to repurchase up to $105 million of
the Senior Notes issued by Fruit of the Loom Canada, Inc. due August
19, 2008 and (iii) to the extent new public notes are issued in
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replacement thereof, to repurchase up to $250 million of the 7.875%
Senior Notes issued by the Borrower due October 15, 1999.
5. Restricted Payments. Section 8.8 of the Credit Agreement is amended
and restated in its entirety to read as follows:
No Credit Party will, nor will it permit its Subsidiaries to,
directly or indirectly, do the following (collectively, "Restricted
Payments") (a) declare or pay any dividends or make any other
distribution upon any shares of its capital stock of any class or (b)
purchase, redeem or otherwise acquire or retire or make any provisions
for redemption, acquisition or retirement of any shares of its capital
stock of any class or any warrants or options to purchase any such
shares; provided that (i) any Subsidiary of the Borrower may pay
dividends to its parent, (ii) subsequent to the Reorganization, the
Borrower may pay dividends on its preferred stock in an amount not to
exceed, in the aggregate, $15 million per year, and (iii) as long as
(A) no Event of Default exists or is caused as a result thereof, (B)
after giving effect thereto, the Borrower is in pro forma compliance
with the financial covenants set forth in Section 7.2, and (C) after
giving effect thereto the Leverage Ratio, on a pro forma basis, will be
less than or equal to 3.5 to 1.0, the Borrower or any of its
Subsidiaries may make Restricted Payments in an aggregate amount for
all such Persons not to exceed (x) from the Closing Date until December
31, 1998, $300 million, (y) from the Closing Date until September 30,
1999, $350 million, and (z) from the Closing Date until the Revolving-A
Loan Maturity Date, $400 million. It is understood and agreed that the
Borrower may pay dividends within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have
otherwise complied with this Section 8.8
6. Consent to Reorganization. Subject to the conditions set forth
below, the Lenders consent to the Reorganization (including any amendment to
articles of incorporation or other formation documents and any intercompany
transactions in the ordinary course, in each case consistent with the terms of
the Reorganization):
(a) The Reorganization occurs on or before December 31, 1998.
(b) The Reorganization occurs on terms substantially identical
to those set forth in the Form S-4 filed by the Parent with the
Securities and Exchange Commission on February 10, 1998.
(c) Simultaneously with the Reorganization, the Parent (i)
unconditionally guarantees the Credit Party Obligations on terms
reasonably acceptable to the Administrative Agent and (ii) executes a
Pledge Agreement on similar terms (including its periods of
effectiveness) to the Pledge Agreement executed by the Credit Parties
on the Closing Date.
(d) Simultaneously with the Reorganization, the Credit Parties
(including the Parent) provide to the Lenders such authority documents
and opinions, including foreign counsel opinions, as reasonably
requested by the Administrative Agent and comply with the terms of
Section 8.4 of the Credit Agreement as appropriate.
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(e) Simultaneous with the Reorganization, the Credit Parties
provide updated schedules to the Credit Agreement, including, without
limitation Schedules 6.15 and 6.21, as appropriate.
7. Pricing. Notwithstanding anything in the Credit Agreement to the
contrary, the Applicable Percentage for Loans, the Letter of Credit Fees and the
Facility Fees shall be based on Pricing Level IV (as set forth in the definition
of Applicable Percentage), from the date of this Amendment until the Unsecured
Senior Debt Rating has been changed or reaffirmed by S&P, and thereafter the
Pricing Level shall be determined by the then current Leverage Ratio or
Unsecured Senior Debt Rating, as applicable.
8. Conditions Precedent. The effectiveness of this Amendment is subject
to receipt by the Administrative Agent of the following:
(a) copies of this Amendment duly executed by the Credit
Parties and the Lenders.
(b) certified copies of resolutions or authorization of each
Credit Party approving and adopting this Amendment, the transactions
contemplated herein and authorizing execution and delivery hereof.
(c) an opinion or opinions from counsel to the Credit Parties,
in form and substance satisfactory to the Administrative Agent,
addressed to the Administrative Agent on behalf of the Lenders and
dated as of the date hereof.
(d) the payment of an amendment fee to each Lender who
executes this Amendment of .125% of its total Commitment and the
payment of such other fees as agreed to between the Borrower and the
Administrative Agent.
9. Ratification of Credit Agreement. The term "Credit Agreement" as
used in each of the Credit Documents shall hereafter mean the Credit Agreement
as amended by this Amendment. Except as herein specifically agreed, the Credit
Agreement is hereby ratified and confirmed and shall remain in full force and
effect according to its terms.
10. Authority/Enforceability. Each of the Credit Parties, the
Administrative Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
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(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
11. No Default. The Credit Parties represent and warrant to the Lenders
that (a) the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement are true and correct as of the date hereof and
(b) no event has occurred and is continuing which constitutes a Default or an
Event of Default except as is being cured by the execution and delivery of this
Amendment.
12. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts by telecopy shall be effective as an original and shall
constitute a representation that an original will be delivered.
13. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
---------
FRUIT OF THE LOOM, INC.,
a Delaware corporation
By:
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
GUARANTORS:
-----------
UNION UNDERWEAR COMPANY, INC.,
a New York corporation
ALICEVILLE COTTON MILL, INC.,
an Alabama corporation
THE B.V.D. LICENSING CORPORATION,
a Delaware corporation
FAYETTE COTTON MILL, INC.,
an Alabama corporation
FOL CARIBBEAN CORPORATION,
a Delaware corporation
FRUIT OF THE LOOM ARKANSAS, INC.,
an Arkansas corporation
FRUIT OF THE LOOM CARIBBEAN, INC.,
a Delaware corporation
FRUIT OF THE LOOM, INC.,
a New York corporation
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FRUIT OF THE LOOM TEXAS, INC.,
a Texas corporation
FTL SALES COMPANY, INC.,
a New York corporation
GITANO FASHIONS LIMITED,
a Delaware corporation
GREENVILLE MANUFACTURING, INC.,
a Mississippi corporation
JET SEW TECHNOLOGIES, INC.,
a New York corporation
XXXXXX XXXXX, INC.,
a Louisiana corporation
PRO PLAYER, INC.,
a New York corporation
XXXXX APPAREL, INC.,
a Georgia corporation
XXXXXXX HOSIERY XXXXX, INC.,
a North Carolina corporation
SALEM SPORTSWEAR CORPORATION,
a Delaware corporation
XXXXXXX WAREHOUSE CORPORATION,
a Mississippi corporation
UNION SALES, INC.,
a Delaware corporation
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XXXXX XXXX XXXXX, XXX.,
an Alabama corporation
XXXXXXXX MANUFACTURING, INC.,
a South Carolina corporation
XXXXXXXX XXXXXX MILL, INC.,
an Alabama corporation
FTL REGIONAL SALES COMPANY, INC.,
a Delaware corporation
LEESBURG YARN XXXXX, INC.,
an Alabama corporation
SALEM SPORTSWEAR, INC.,
a New Hampshire corporation
FRUIT OF THE LOOM TRADING COMPANY,
a Delaware corporation
DEKALB KNITTING CORPORATION,
an Alabama corporation
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and a Financial Officer
of each of the foregoing entities
identified as a Guarantor
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LENDERS:
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NATIONSBANK, N.A.,
individually in its capacity as a Lender and
in its capacity as Administrative
Agent and Collateral Agent
By:
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
BANKERS TRUST COMPANY
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 0000
XXX XXXX XX XXX XXXX
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 0000
XXX XXXX XX XXXX XXXXXX
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
THE CHASE MANHATTAN BANK
By:
---------------------------
Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
ABN AMRO BANK N.V.
By:
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Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
BANK AUSTRIA AG, NEW YORK BRANCH
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
BANK OF AMERICA NT & SA
By:
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Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
CREDIT AGRICOLE INDOSEUZ
By:
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Name:
-------------------------
Title:
-------------------------
By:
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Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
CREDIT LYONNAIS CHICAGO BRANCH
By:
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Name:
-------------------------
Title:
-------------------------
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
CREDIT SUISSE FIRST BOSTON
By:
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Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
THE FIRST NATIONAL BANK OF CHICAGO
By:
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Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
THE FUJI BANK, LIMITED
By:
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Name:
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Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
GULF INTERNATIONAL BANK B.S.C.
By:
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Name:
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Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
HIBERNIA NATIONAL BANK
By:
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Name:
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Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
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Name:
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Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
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Name:
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Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
THE NORTHERN TRUST COMPANY
By:
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Name:
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Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
CO_PERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
SOCIETE GENERALE
By:
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Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
TORONTO DOMINION (TEXAS), INC.
By:
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Name:
-------------------------
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 0000
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
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SIGNATURE PAGE TO FIRST AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF MARCH 26, 1998
THE ASAHI BANK, LTD., NEW YORK BRANCH
By:
---------------------------
Name:
-------------------------
Title:
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SECOND AMENDMENT TO THE CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THE CREDIT AGREEMENT (this "Amendment") is
entered into as of July 2, 1998 among FRUIT OF THE LOOM, INC., a Delaware
corporation (the "Borrower"), certain Subsidiaries of the Borrower as
Guarantors, the Lenders party hereto and NATIONSBANK, N.A., as Administrative
Agent for the Lenders (the "Administrative Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in the
Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent entered into that certain Credit Agreement, dated as of
September 19, 1997, whereby the Lenders provided to the Borrower a $900 million
credit facility (as amended by that certain First Amendment to the Credit
Agreement dated as of March 26, 1998 and as further amended or modified from
time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders agree to amend the
terms of the Credit Agreement to, among other things, permit the sharing of
Collateral with certain other creditors of the Borrower;
WHEREAS, the Required Lenders have agreed to amend certain terms of the
Credit Agreement as more fully set forth below:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Definitions.
(a) The definition of "Applicable Percentage" set forth in
Section 1.1 of the Credit Agreement is amended by amending and
restating in its entirety Pricing Level IV of the pricing grid set
forth in such definition to read as follows:
Applicable Applicable Applicable
Percentage Percentage Applicable Percentage Applicable Applicable
Unsecured for for Applicable Percentage for Percentage Percentage
Senior Revolving-A Revolving-B Percentage for Letter Revolving-A for for
Pricing Leverage Debt Eurocurrency Eurocurrency for Term of Credit Facility Revolving-B Base Rate
Level Ratio Rating Loans Loans Loans Fees Fees Facility Fees Loans
------- -------- --------- ------------ ------------ ---------- ---------- ----------- ------------- ----------
IV >= 2.5 to >= BB+ from .625% .675% .825% .625% .20% .15% 0%
1.0 but < S&P or Ba1
3.25 to 1.0 from S&P or
Xxxxx'x but
< BBB- from
S&P or Baa3
from Xxxxx'x
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(b) A new definition is added to Section 1.1 of the Credit
Agreement to read as follows:
"Noteholders" means the holders of the Indebtedness
evidenced by the Senior Note Indentures.
(c) The definition of "Permitted Liens" in Section 1.1 of the
Credit Agreement is amended and restated in its entirety to read as
follows:
"Permitted Liens" means (a) Liens securing Credit
Party Obligations, (b) Liens for taxes not yet due or Liens
for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which
the property subject to any such Lien is not yet subject to
foreclosure, sale, collection, levy or loss on account
thereof), (c) Liens in respect of property imposed by law
arising in the ordinary course of business such as
materialmen's, mechanics', warehousemen's, carrier's,
landlords' and other nonconsensual statutory Liens which are
not yet due and payable or which are being contested in good
faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and
as to which the property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof), (d)
pledges or deposits made in the ordinary course of business to
secure payment of workers' compensation insurance,
unemployment insurance, pensions or social security programs,
(e) Liens arising from good faith deposits in connection with
or to secure performance of tenders, bids, leases, government
contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of
business (other than obligations in respect of the payment of
borrowed money), (f) Liens arising from good faith deposits in
connection with or to secure performance of statutory
obligations and surety and appeal bonds, (g) easements,
rights-of-way, restrictions (including zoning restrictions),
matters of plat, minor defects or irregularities in title and
other similar charges or encumbrances not, in any material
respect, impairing the use of the encumbered property for its
intended purposes, (h) judgment Liens that would not
constitute an Event of Default, (i) liens in connection with
Indebtedness permitted by Section 8.1(f),(j) Liens arising by
virtue of any statutory or common law provision relating to
banker's liens, rights of setoff or similar rights as to
deposit accounts or other funds maintained with a creditor
depository institution, (k) Liens on Receivables Facility
Assets transferred (i) to a Receivables Subsidiary or (ii) by
a Receivables Subsidiary to the purchaser of such receivables
(and the filing of financing statements in connection
therewith), (l) Liens existing on the Closing Date and
identified on Schedule 8.2 and any renewals and extensions
thereof or amendments thereto not otherwise prohibited by the
provisions of this definition; provided that no such Lien
shall extend to any property other than the property subject
thereto on the Closing Date and any additions thereto in the
ordinary course of business (so long as the amount of
Indebtedness secured thereby is not increased other than as
permitted hereunder), (m) pro rata Liens in favor of the
Noteholders as set forth in the terms of any Pledge Agreement
executed and delivered by the Credit Parties to the Collateral
Agent, for the benefit of the
2
36
Lenders and the Noteholders and (n) Liens not described in
clauses (a) through (m) above; provided, however, that the
aggregate amount of Indebtedness secured by Liens permitted
under this clause (n), when added (without duplication) to (i)
the aggregate amount of Indebtedness then outstanding and
permitted under Section 8.1(1) and (ii) the aggregate amount
of sale leaseback transactions then outstanding and permitted
under Section 8.6, shall not exceed 10% of Consolidated Net
Tangible Assets (it being understood that the calculation of
each such aggregate amount will not include Indebtedness
outstanding and permitted under Section 8.1(a)-(k), including
Indebtedness listed on Schedule 6.10 and refinancings thereof
permitted pursuant to Section 8.1(c)).
(d) The definition of "Pledge Agreements" in Section 1.1 of
the Credit Agreement is amended and restated in its entirety to read as
follows:
"Pledge Agreements" means any Pledge Agreement (or
any amended and restated pledge agreement) executed and
delivered by the Credit Parties either (a) in favor of the
Collateral Agent, for the benefit of the Lenders and some or
all of the Noteholders, to secure the obligations under the
Credit Documents and the Senior Note Indentures or (b) in
favor of the Collateral Agent, for the benefit of the Lenders,
to secure the obligations under the Credit Documents, as such
Pledge Agreements may be amended, modified, extended, renewed
or replaced from time to time; provided that it is understood
that the Pledge Agreements will be effective only during a
Collateral Period.
(e) A new definition is added to Section 1.1 of the Credit
Agreement to read as follows:
"Senior Note Indentures" means (a) that certain
Indenture dated March 15, 1981 evidencing 7% Debentures issued
by Northwest Industries, Inc. (predecessor in interest to the
Borrower) due March 15, 2011 in the original face amount of
$125,000,000, (b) that certain Indenture dated November 30,
1993 evidencing 6 1/2% Notes due 2003 issued by the Borrower
in the original face amount of $150,000,000 and (c) that
certain Indenture dated November 30, 1993 evidencing 7 3/8%
Debentures due 2023 issued by the Borrower in the original
face amount of $150,000,000.
(f) The definition of "Unsecured Senior Debt Rating" in
Section 1.1 of the Credit Agreement is amended and restated in its
entirety to read as follows:
"Unsecured Senior Debt Rating" means the debt rating
provided by S&P and/or Xxxxx'x with respect to the unsecured public
senior long term debt of the Borrower.
(g) A new definition is added to Section 1.1 of the Credit
Agreement to read as follows:
"Year 2000 Problem" means any risk that any computer
hardware, software or other equipment used by a Credit Party
or any of its Subsidiaries (or
3
37
by any of its suppliers, vendors or customers that is material
to its business) will not function as effectively and reliably
with respect to recognition of dates and times on and after
January 1, 2000 as it does prior to January 1, 2000, to the
extent such risk would cause or be reasonably expected to
cause a Material Adverse Effect.
2. Year 2000 Compliance.
(a) A new Section 6.25 is added to the Credit Agreement to
read as follows:
Each Credit Party has (a) reviewed and
assessed all areas within its and each of its
Subsidiaries' businesses and operation (including
those affected by suppliers, vendors and customers)
that reasonably would be expected to be adversely
affected by the Year 2000 Problem, (b) developed a
plan and timeline, as necessary, to address the Year
2000 Problem and (c) implemented such plan in
accordance with its timetable. Each Credit Party
reasonably believes that the Year 2000 Problem has
been appropriately addressed by it and the Year 2000
Problem will not exist with respect to it or any of
its Subsidiaries on or after January 1, 2000.
(b) Section 7.1 of the Credit Agreement is amended by adding a
new subsection (j) to read as follows:
(j) Year 2000 Information. Upon the written
request of the Administrative Agent, such
information, assurances and documentation (including,
but not limited to, the results of internal and
external audit reports prepared in connection
therewith) reasonably acceptable to the
Administrative Agent that the Credit Parties and
their Subsidiaries will not have a Year 2000 Problem
on or after January 1, 2000.
3. Conditions Precedent. The effectiveness of this Amendment is subject
to receipt by the Administrative Agent of the following:
(a) copies of this Amendment duly executed by the Credit
Parties and the Required Lenders.
(b) certified copies of resolutions or authorization of each
Credit Party approving and adopting this Amendment, the transactions
contemplated herein and authorizing execution and delivery hereof.
(c) an opinion or opinions from counsel to the Credit Parties,
in form and substance satisfactory to the Administrative Agent,
addressed to the Administrative Agent on behalf of the Lenders and
dated as of the date hereof.
(d) an amended and restated Pledge Agreement (or Pledge
Agreements, as appropriate) duly executed by the Credit Parties, in
form and substance acceptable to the Required Lenders.
4
38
4. Ratification of Credit Agreement. The term "Credit Agreement" as
used in each of the Credit Documents shall hereafter mean the Credit Agreement
as amended by this Amendment. Except as herein specifically agreed, the Credit
Agreement is hereby ratified and confirmed and shall remain in full force and
effect according to its terms.
5. Authority/Enforceability. Each of the Credit Parties, the
Administrative Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
6. No Default. The Credit Parties represent and warrant to the Lenders
that (a) the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement are true and correct as of the date hereof and
(b) no event has occurred and is continuing which constitutes a Default or an
Event of Default except as is being cured by the execution and delivery of this
Amendment.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts by telecopy shall be effective as an original and shall
constitute a representation that an original will be delivered.
8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
[remainder of page intentionally left blank]
5
39
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
FRUIT OF THE LOOM, INC.,
a Delaware corporation
By:
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
GUARANTORS:
UNION UNDERWEAR COMPANY, INC.,
a New York corporation
ALICEVILLE COTTON MILL, INC.,
an Alabama corporation
THE B.V.D. LICENSING CORPORATION,
a Delaware corporation
FAYETTE COTTON MILL, INC.,
an Alabama corporation
FOL CARIBBEAN CORPORATION,
a Delaware corporation
FRUIT OF THE LOOM ARKANSAS, INC.,
an Arkansas corporation
FRUIT OF THE LOOM CARIBBEAN, INC.,
a Delaware corporation
FRUIT OF THE LOOM, INC.,
a New York corporation
40
FRUIT OF THE LOOM TEXAS, INC.,
a Texas corporation
FTL SALES COMPANY, INC.,
a New York corporation
GITANO FASHIONS LIMITED,
a Delaware corporation
GREENVILLE MANUFACTURING, INC.,
a Mississippi corporation
JET SEW TECHNOLOGIES, INC.,
a New York corporation
XXXXXX XXXXX, INC.,
a Louisiana corporation
PRO PLAYER, INC.,
a New York corporation
XXXXX APPAREL, INC.,
a Georgia corporation
XXXXXXX HOSIERY XXXXX, INC.,
a North Carolina corporation
SALEM SPORTSWEAR CORPORATION,
a Delaware corporation
XXXXXXX WAREHOUSE CORPORATION,
a Mississippi corporation
UNION SALES, INC.,
a Delaware corporation
UNION YARN XXXXX, INC.,
an Alabama corporation
XXXXXXXX MANUFACTURING, INC.,
a South Carolina corporation
XXXXXXXX XXXXXX MILL, INC.,
an Alabama corporation
FTL REGIONAL SALES COMPANY, INC.,
a Delaware corporation
LEESBURG YARN XXXXX, INC.,
an Alabama corporation
SALEM SPORTSWEAR, INC.,
a New Hampshire corporation
FRUIT OF THE LOOM TRADING COMPANY,
a Delaware corporation
DEKALB KNITTING CORPORATION,
an Alabama corporation
By:
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and a
Financial Officer of each of
the foregoing entities
identified as a Guarantor
41
LENDERS:
NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as
Administrative Agent and Collateral
Agent
By:
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
42
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
BANKERS TRUST COMPANY
By:
---------------------------------
Name:
-------------------------------
Title
-------------------------------
43
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 0000
XXX XXXX XX XXX XXXX
By:
---------------------------------
Name:
-------------------------------
Title
-------------------------------
44
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 0000
XXX XXXX XX XXXX XXXXXX
By:
---------------------------------
Name:
-------------------------------
Title
-------------------------------
45
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
THE CHASE MANHATTAN BANK
By:
---------------------------------
Name:
-------------------------------
Title
-------------------------------
46
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
ABN AMRO BANK N.V.
By:
---------------------------------
Name:
--------------------------------
Title
-------------------------------
By:
---------------------------------
Name:
--------------------------------
Title
-------------------------------
47
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
BANK AUSTRIA AG, NEW YORK BRANCH
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
48
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
BANK OF AMERICA NT & SA
By:
----------------------------------
Name:
--------------------------------
Title
-------------------------------
49
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
CREDIT AGRICOLE INDOSEUZ
By:
----------------------------------
Name:
--------------------------------
Title
-------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
50
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
CREDIT LYONNAIS CHICAGO BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
51
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
52
53
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
THE FIRST NATIONAL BANK OF CHICAGO
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
54
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
THE FUJI BANK, LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
55
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
GULF INTERNATIONAL BANK B.S.C.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
56
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
HIBERNIA NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
57
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
58
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
59
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
THE NORTHERN TRUST COMPANY
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
60
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
CO_PERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
61
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
SOCIETE GENERALE
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
62
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
TORONTO DOMINION (TEXAS), INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
63
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 0000
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
64
SIGNATURE PAGE TO SECOND AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF JULY 2, 1998
THE ASAHI BANK, LTD., NEW YORK BRANCH
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
65
THIRD AMENDMENT TO THE CREDIT AGREEMENT
THIS THIRD AMENDMENT TO THE CREDIT AGREEMENT (this "Amendment") is
entered into as of December 31, 1998 among FRUIT OF THE LOOM, INC., a Delaware
corporation (the "Borrower"), certain Subsidiaries of the Borrower as
Guarantors, the Lenders party hereto and NATIONSBANK, N.A., as Administrative
Agent for the Lenders (the "Administrative Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in the
Credit Agreement (as defined below).
R E C I T A L S
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent entered into that certain Credit Agreement, dated as of
September 19, 1997 (as amended by that certain First Amendment to the Credit
Agreement dated as of March 26, 1998 (the "First Amendment"), that certain
Second Amendment to the Credit Agreement dated as of July 2, 1998 and as further
amended or modified from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders agree to amend
certain terms of the Credit Agreement;
WHEREAS, the Required Lenders have agreed to such amendments to the
Credit Agreement as more fully set forth below:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
A G R E E M E N T
1. Euro Conversion. A new Section 3.17 is added to the Credit Agreement
to read as follows:
3.17. Euro Conversion
(a) If, as a result of the implementation of the
European economic and monetary union ("EMU"), (i) any currency
available for borrowing under this Credit Agreement (a
"national currency") ceases to be lawful currency of the state
issuing the same and is replaced by a European single or
common currency (the "Euro") or (ii) any national currency and
the Euro are at the same time both recognized by the central
bank or comparable governmental authority of the state issuing
such currency as lawful currency of such state, then any
amount payable hereunder by any party hereto in such national
currency (including,
66
without limitation, any Loan to be made under this Credit
Agreement) shall instead be payable in the Euro and the amount
so payable shall be determined by redenominating or converting
such amount into the Euro at the exchange rate officially
fixed by the European Central Bank for the purpose of
implementing the EMU; provided, that to the extent any EMU
legislation provides that an amount denominated either in the
Euro or in the applicable national currency can be paid either
in Euros or in the applicable national currency, each Credit
Party shall be entitled to pay or repay such amount in Euros
or in the applicable national currency. Prior to the
occurrence of the event or events described in clause (i) or
(ii) of the preceding sentence, each amount payable hereunder
in any such national currency will, except as otherwise
provided herein, continue to be payable only in that national
currency.
(b) The Borrower shall, from time to time, at the
request of the Administrative Agent, pay to the Administrative
Agent for the account of each Lender the amount of any cost or
increased cost incurred by, or of any reduction in any amount
payable to or in the effective return on its capital to, or of
interest or other return foregone by, such Lender or any
holding company of such Lender as a result of the introduction
of, changeover to or operation of the Euro in any applicable
state.
(c) In addition, this Credit Agreement (including,
without limitation, the definition of London Interbank Offered
Rate) will be amended to the extent determined by the
Administrative Agent (acting reasonably and in consultation
with the Borrower) to be necessary to reflect such
implementation of the EMU and change in currency and to put
the Lenders and the Borrower in the same position, so far as
possible, that they would have been in if such implementation
and change in currency had not occurred. Except as provided in
the foregoing provisions of this Section 3.17, no such
implementation or change in currency nor any economic
consequences resulting therefrom shall (i) give rise to any
right to terminate prematurely, contest, cancel, rescind,
alter, modify or renegotiate the provisions of this Credit
Agreement or (ii) discharge, excuse or otherwise affect the
performance of any obligations of any Credit Party under this
Credit Agreement, the Notes or any of the other Credit
Documents.
2. Sections 3.15 and 3.16. Each of Section 3.15 and Section 3.16 of the
Credit Agreement is amended to add the words "or 3.17" after the word "3.14" in
the second line of each of those Sections.
3. Reorganization. Pursuant to the First Amendment, the Lenders
consented to the Reorganization if, among other things, the Reorganization
occurred on or before December 31, 1998 and the Reorganization occurred on terms
substantially identical to those set forth in the
2
67
Form S-4 filed by the Parent with the Securities and Exchange Commission on
February 10, 1998. Subject to the other conditions set forth in paragraph 6 of
the First Amendment, the Lenders reaffirm their consent to the Reorganization if
(a) the Reorganization occurs on or before December 31, 1999 and (b) the
Reorganization occurs on terms substantially identical to those set forth in the
Amended and Restated Form S-4 filed by the Parent with the Securities and
Exchange Commission on September 16, 1998.
4. Conditions Precedent. The effectiveness of this Amendment is subject
to receipt by the Administrative Agent of the following:
(a) copies of this Amendment duly executed by the Credit
Parties and the Required Lenders.
(b) certified copies of resolutions or authorization of each
Credit Party approving and adopting this Amendment, the transactions
contemplated herein and authorizing execution and delivery hereof.
(c) an opinion or opinions from counsel to the Credit Parties,
in form and substance satisfactory to the Administrative Agent,
addressed to the Administrative Agent on behalf of the Lenders and
dated as of the date hereof.
5. Ratification of Credit Agreement. The term "Credit Agreement" as
used in each of the Credit Documents shall hereafter mean the Credit Agreement
as amended by this Amendment. Except as herein specifically agreed, the Credit
Agreement is hereby ratified and confirmed and shall remain in full force and
effect according to its terms.
6. Authority/Enforceability. Each of the Credit Parties, the
Administrative Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
3
68
7. No Default. The Credit Parties represent and warrant to the Lenders
that (a) the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement are true and correct as of the date hereof and
(b) no event has occurred and is continuing which constitutes a Default or an
Event of Default except as is being cured by the execution and delivery of this
Amendment.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts by telecopy shall be effective as an original and shall
constitute a representation that an original will be delivered.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
[remainder of page intentionally left blank]
4
69
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
---------
FRUIT OF THE LOOM, INC.,
a Delaware corporation
By:
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
GUARANTORS:
-----------
UNION UNDERWEAR COMPANY, INC.,
a New York corporation
ALICEVILLE COTTON MILL, INC.,
an Alabama corporation
THE B.V.D. LICENSING CORPORATION,
a Delaware corporation
FAYETTE COTTON MILL, INC.,
an Alabama corporation
FOL CARIBBEAN CORPORATION,
a Delaware corporation
FRUIT OF THE LOOM ARKANSAS, INC.,
an Arkansas corporation
FRUIT OF THE LOOM CARIBBEAN, INC.,
a Delaware corporation
FRUIT OF THE LOOM, INC.,
70
a New York corporation
FRUIT OF THE LOOM TEXAS, INC.,
a Texas corporation
FTL SALES COMPANY, INC.,
a New York corporation
GITANO FASHIONS LIMITED,
a Delaware corporation
GREENVILLE MANUFACTURING, INC.,
a Mississippi corporation
JET SEW TECHNOLOGIES, INC.,
a New York corporation
XXXXXX XXXXX, INC.,
a Louisiana corporation
PRO PLAYER, INC.,
a New York corporation
XXXXX APPAREL, INC.,
a Georgia corporation
XXXXXXX HOSIERY XXXXX, INC.,
a North Carolina corporation
SALEM SPORTSWEAR CORPORATION,
a Delaware corporation
XXXXXXX WAREHOUSE CORPORATION,
a Mississippi corporation
71
UNION SALES, INC.,
a Delaware corporation
UNION YARN XXXXX, INC.,
an Alabama corporation
XXXXXXXX MANUFACTURING, INC.,
a South Carolina corporation
XXXXXXXX XXXXXX MILL, INC.,
an Alabama corporation
FTL REGIONAL SALES COMPANY, INC.,
a Delaware corporation
LEESBURG YARN XXXXX, INC.,
an Alabama corporation
SALEM SPORTSWEAR, INC.,
a New Hampshire corporation
FRUIT OF THE LOOM TRADING COMPANY,
a Delaware corporation
DEKALB KNITTING CORPORATION,
an Alabama corporation
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and a Financial Officer
of each of the foregoing entities
identified as a Guarantor
72
LENDERS:
--------
NATIONSBANK, N.A.,
individually in its capacity as a Lender and
in its capacity as Administrative Agent and
Collateral Agent
By:
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
73
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
BANKERS TRUST COMPANY
By:
Name:
Title:
74
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 0000
XXX XXXX XX XXX XXXX
By:
Name:
Title:
75
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 0000
XXX XXXX XX XXXX XXXXXX
By:
Name:
Title:
76
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
THE CHASE MANHATTAN BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
77
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
ABN AMRO BANK N.V.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
78
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
BANK AUSTRIA AG, NEW YORK BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
79
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
BANK OF AMERICA NT & SA
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
80
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
CREDIT AGRICOLE INDOSEUZ
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
81
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
CREDIT LYONNAIS CHICAGO BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
82
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
83
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
THE FIRST NATIONAL BANK OF CHICAGO
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
84
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
THE FUJI BANK, LIMITED
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
85
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
GULF INTERNATIONAL BANK B.S.C.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
86
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
HIBERNIA NATIONAL BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
87
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
88
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
89
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
THE NORTHERN TRUST COMPANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
90
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
CO_PERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
91
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
SOCIETE GENERALE
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
92
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
93
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 0000
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
94
SIGNATURE PAGE TO THIRD AMENDMENT TO FRUIT OF THE LOOM
CREDIT AGREEMENT DATED AS OF DECEMBER 31, 1998
THE ASAHI BANK, LTD., NEW YORK BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
95
FOURTH AMENDMENT TO THE CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO THE CREDIT AGREEMENT (this "Amendment") is
entered into as of March 10, 1999 among FRUIT OF THE LOOM, INC., a Delaware
corporation (the "Borrower"), Fruit of the Loom, Ltd., a Cayman Islands company
(the "Parent") and certain Subsidiaries of the Borrower as Guarantors, the
Lenders party hereto and NATIONSBANK, N.A., as Administrative Agent for the
Lenders (the "Administrative Agent"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Credit
Agreement (as defined below).
R E C I T A L S
WHEREAS, the Borrower, the Guarantors (other than the Parent), the
Lenders and the Administrative Agent entered into that certain Credit Agreement,
dated as of September 19, 1997 (as amended by that certain First Amendment to
the Credit Agreement dated as of March 26, 1998, that certain Second Amendment
to the Credit Agreement dated as of July 2, 1998, that certain Third Amendment
to the Credit Agreement dated as of December 31, 1998 and as further amended or
modified from time to time, the "Credit Agreement");
WHEREAS, by execution of a joinder agreement dated as of the date
hereof, the Parent has been added as a Guarantor and Credit Party to the Credit
Agreement;
WHEREAS, the Borrower has requested that the Lenders agree to amend
certain terms of the Credit Agreement;
WHEREAS, the Required Lenders have agreed to such amendments to the
Credit Agreement as more fully set forth below:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
A G R E E M E N T
1. Definitions.
(a) New Definitions. The following definitions are added to
Section 1.1 of the Credit Agreement, in the appropriate alphabetical order, to
read as follows:
"Bond Pledge Agreement" means that certain Bond Pledge
Agreement (as amended, modified, extended, renewed or restated from
time to time) executed
96
and delivered by the Credit Parties in favor of the Collateral Agent
for the benefit of the Lenders, the Noteholders and the Xxxxxx
Creditors.
"Bridge Facility" means that certain Indebtedness, if any,
incurred by the Borrower, in an aggregate amount up to $250 million, to
repurchase the 7.875% Senior Notes due October 15, 1999.
"Xxxxxx Creditors" means the holders of that certain
Indebtedness, in an aggregate amount up to $65 million, to Xxxxxxx
Xxxxxx that is unconditionally guaranteed in full by the Borrower and
its Material Domestic Subsidiaries.
"Security Agreement" means that certain Security Agreement (as
amended, modified, extended, renewed or restated from time to time)
executed and delivered by the Credit Parties in favor of the Collateral
Agent for the benefit of the Lenders, the Noteholders and the Xxxxxx
Creditors; provided that it is understood that the Security Agreement
will only be effective subsequent to any date that the Unsecured Senior
Debt Rating is BB- or worse from S&P and Ba3 or worse from Xxxxx'x, as
more fully described in the Security Agreement.
(b) Applicable Percentage. The pricing grid set forth in the
definition of "Applicable Percentage" in Section 1.1 of the Credit Agreement is
amended and restated in its entirety to read as follows:
2
97
Applicable Applicable Applicable
Percentage for Applicable Percentage Percentage Applicable
Unsecured Revolving-A Percentage for Letter for Revolving-A Percentage
Pricing Leverage Senior Eurocurrency for Term of Credit for Facility Base Rate
Level Ratio Debt Loans Loans Fees Fees Loans
Rating
I N/A => BBB+ .675% .875% .675% .20% 0%
from S&P
or Baa1
from
Xxxxx'x
II N/A => BBB .775% 1.00% .775% .225% 0%
from S&P
or Baa2
from
Xxxxx'x
but <
BBB+ from
S&P or
Baa1 from
Xxxxx'x
III => 2.0 => BBB- 1.00% 1.25% 1.00% .25% 0%
to 1.0 from S&P
but < or Baa3
2.5 to from
1.0 Xxxxx'x
but < BBB
from S&P
or Baa2
from
Xxxxx'x
IV => 2.5 => BB+ 1.125% 1.50% 1.125% .375% 0%
to 1.0 from S&P
but < or Ba1
3.25 to from
1.0 Xxxxx'x
but <
BBB- from
S&P or
Baa3 from
Xxxxx'x
V => 3.25 => BB 1.375% 1.75% 1.375% .375% .25%
to 1.0 from S&P
but < or Ba2
4.0 to from
1.0 Xxxxx'x
but < BB+
from S&P
or Ba1
from
Xxxxx'x
VI => 4.0 <= BB- 1.50% 2.00% 1.50% .50% .50%
to 1.0 from S&P
or Ba3
from
Xxxxx'x
3
98
(c) The definition of "Collateral Documents" set forth in
Section 1.1 of the Credit Agreement is amended and restated in its
entirety to read as follows:
Collateral Documents means the Pledge Agreements, the
Bond Pledge Agreement, the Security Agreement and such other
documents executed and delivered in connection with the
attachment and perfection of the Lenders' security interest in
the Collateral, including, without limitation, UCC financing
statements; provided, however, it is understood that certain
Collateral Documents will only be effective as set forth in
the terms thereof.
(d) Interest Expense. The definition of "Interest Expense" set
forth in Section 1.1 of the Credit Agreement is amended and restated in
its entirety to read as follows:
"Interest Expense" means, for any period, with
respect to the Credit Parties and their Subsidiaries on a
consolidated basis, all net interest expense (defined as
interest expense less interest income), including the interest
component under Capital Leases, as determined in accordance
with GAAP.
(e) Permitted Liens. Clause (n) set forth in the definition of
"Permitted Liens" in Section 1.1 of the Credit Agreement is amended and
restated in its entirety to read as follows:
(n) Liens in connection with Indebtedness permitted by Section
8.1(l)
(f) The definition of "Pledge Agreements" in Section 1.1 of
the Credit Agreement is amended and restated in its entirety to read as
follows:
"Pledge Agreements" means any Pledge Agreement (or
any amended and restated pledge agreement) executed and
delivered by the Credit Parties in favor of the Collateral
Agent, for the benefit of the Lenders, some or all of the
Noteholders and the Xxxxxx Creditors; provided that it is
understood that the Pledge Agreements will be effective only
during a Collateral Period.
4
99
2. Financial Covenants. Section 7.2 of the Credit Agreement is amended
and restated in its entirety to read as follows:
As of the end of each fiscal quarter set forth below, the
Leverage Ratio, Interest Coverage Ratio and Fixed Charge Coverage Ratio
shall satisfy the following minimum and maximum requirements:
Minimum Fixed
Minimum Interest Charge Coverage
Coverage Ratio Ratio
Maximum (for the twelve-month (for the twelve-month
Fiscal Quarter Ending: Leverage Ratio period ending on such date) period ending on such date)
March 31, 1999 4.5 to 1.0 1.75 to 1.0 2.00 to 1.0
June 30, 1999 4.75 to 1.0 1.75 to 1.0 2.00 to 1.0
September 30, 1999 4.0 to 1.0 1.75 to 1.0 2.00 to 1.0
December 31, 1999 3.25 to 1.0 2.0 to 1.0 2.25 to 1.0
March 31, 2000 3.25 to 1.0 2.25 to 1.0 2.25 to 1.0
June 30, 2000 3.25 to 1.0 2.25 to 1.0 2.25 to 1.0
September 30, 2000 3.0 to 1.0 2.50 to 1.0 2.25 to 1.0
December 31, 2000 3.0 to 1.0 2.50 to 1.0 2.25 to 1.0
and thereafter
3. Use of Proceeds. Clause (a) of Section 7.10 of the Credit Agreement
is amended and restated in its entirety to read as follows:
(a)(i) to refinance, at or after maturity, existing
Indebtedness described on Schedule 6.10 (or permitted refinancings
thereof), (ii) to refinance any amounts outstanding under the Bridge
Facility at the maturity thereof or thereafter and (iii) to repurchase
any of the 7.875% Senior Notes due October 15, 1999 that a holder
thereof requires the Borrower to purchase if the Borrower has
successfully issued unsecured notes in an amount not less than the
amount to be repurchased.
4. Real Estate Collateral. A new Section 7.14 is added to the Credit
Agreement to read as follows:
7.14 REAL ESTATE COLLATERAL.
If the Unsecured Senior Debt Rating is BB- or worse from S&P
and Ba3 or worse from Xxxxx'x, then the Borrower agrees to pledge all
of its domestic real property as collateral for the Credit Party
Obligations and shall deliver such mortgages, deeds of trust, title
insurance policies, surveys, appraisals, flood certificates,
environmental reports, opinions and other documents with respect
thereto as requested by the Collateral Agent or the Required Lenders.
5. Indebtedness.
(a) Clause (i) of Section 8.1 of the Credit Agreement is amended and
restated in its entirety to read as follows:
5
100
(i) Indebtedness in the form of unsecured notes as long as,
substantially concurrently with the issuance thereof, the proceeds are
used (A) first to repay any amounts outstanding under the Bridge
Facility and (B) second, to repay Revolving-A Loans (without any
reduction in the Revolving-A Committed Amount).
(b) Clause (l) of Section 8.1 of the Credit Agreement is amended and
restated in its entirety to read as follows:
(l) other Indebtedness; provided, however, that the aggregate
amount of Indebtedness permitted under this Section 8.1(l), when added
(without duplication) to the aggregate amount of sale leaseback
transactions then outstanding and permitted under Section 8.6, shall
not exceed 10% of Consolidated Net Tangible Assets (it being understood
that the calculation of each such aggregate amount will not include
Indebtedness outstanding and permitted under Sections 8.1(a)-(k),
including Indebtedness listed on Schedule 6.10 and refinancings thereof
permitted pursuant to Section 8.1(c)).
6. Restricted Payments. Clause (c) of Section 8.8 of the Credit
Agreement shall be amended to delete the words "3.5 to 1.0" set forth therein
and to insert the words "3.25 to 1.0" in substitution therefor.
7. Events of Default. Section 9.1(g) of the Credit Agreement is amended
by adding the following at the end of such Section:
provided, however, that a default under the terms of those certain
7.875% Senior Notes issued by the Borrower due October 15, 1999, solely
as a result of the Reorganization, shall not be considered to be a
Default or an Event of Default hereunder.
8. Conditions Precedent. The effectiveness of this Amendment is subject
to receipt by the Administrative Agent of the following:
(a) copies of this Amendment duly executed by the Credit
Parties and the Required Lenders.
(b) certified copies of resolutions or authorization of each
Credit Party approving and adopting this Amendment, the transactions
contemplated herein and authorizing execution and delivery hereof.
(c) an opinion or opinions from counsel to the Credit Parties,
in form and substance satisfactory to the Administrative Agent,
addressed to the Administrative Agent on behalf of the Lenders and
dated as of the date hereof.
6
101
(d) an amended and restated Pledge Agreement duly executed by
the Credit Parties, in form and substance acceptable to the Collateral
Agent.
(e) a Security Agreement duly executed by the Credit Parties,
in form and substance acceptable to the Collateral Agent.
(f) a Bond Pledge Agreement duly executed by the Credit
Parties, in form and substance acceptable to the Collateral Agent.
(g) the execution and delivery of such UCC financing
statements or the taking of such other actions as the Collateral Agent
may reasonably request in order to perfect the Lenders' security
interest in the Collateral .
(h) the payment of an amendment fee to each Lender who
executes this Amendment of .25% of its current total Commitment and the
payment of such other fees as agreed to between the Borrower and the
Administrative Agent.
9. Ratification of Credit Agreement. The term "Credit Agreement" as
used in each of the Credit Documents shall hereafter mean the Credit Agreement
as amended by this Amendment. Except as herein specifically agreed, the Credit
Agreement is hereby ratified and confirmed and shall remain in full force and
effect according to its terms.
10. Authority/Enforceability. Each of the Credit Parties, the
Administrative Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
11. No Default/Release. The Credit Parties represent and warrant to the
Lenders that (a) the representations and warranties of the Credit Parties set
forth in Section 6 of the Credit Agreement are true and correct as of the date
hereof, (b) no event has occurred and is continuing which constitutes a Default
or an Event of Default except as is being cured by the execution and delivery of
this Amendment and (c) they have no claims, counterclaims, offsets, credits or
7
102
defenses to their obligations under the Credit Documents or to the extent they
have any they are hereby released in consideration of the Required Lenders
entering into this Amendment.
12. Counterparts/Telecopy. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered.
13. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
[remainder of page intentionally left blank]
8
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
---------
FRUIT OF THE LOOM, INC.,
a Delaware corporation
By:
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
GUARANTORS:
-----------
FRUIT OF THE LOOM, LTD.,
a Cayman Islands company
UNION UNDERWEAR COMPANY, INC.,
a New York corporation
ALICEVILLE COTTON MILL, INC.,
an Alabama corporation
THE B.V.D. LICENSING CORPORATION,
a Delaware corporation
FAYETTE COTTON MILL, INC.,
an Alabama corporation
FOL CARIBBEAN CORPORATION,
a Delaware corporation
FRUIT OF THE LOOM ARKANSAS, INC.,
an Arkansas corporation
FRUIT OF THE LOOM CARIBBEAN, INC.,
a Delaware corporation
104
FRUIT OF THE LOOM, INC.,
a New York corporation
FRUIT OF THE LOOM TEXAS, INC.,
a Texas corporation
FTL SALES COMPANY, INC.,
a New York corporation
GITANO FASHIONS LIMITED,
a Delaware corporation
GREENVILLE MANUFACTURING, INC.,
a Mississippi corporation
JET SEW TECHNOLOGIES, INC.,
a New York corporation
XXXXXX XXXXX, INC.,
a Louisiana corporation
PRO PLAYER, INC.,
a New York corporation
XXXXX APPAREL, INC.,
a Georgia corporation
XXXXXXX HOSIERY XXXXX, INC.,
a North Carolina corporation
105
SALEM SPORTSWEAR CORPORATION,
a Delaware corporation
XXXXXXX WAREHOUSE CORPORATION,
a Mississippi corporation
UNION SALES, INC.,
a Delaware corporation
UNION YARN XXXXX, INC.,
an Alabama corporation
XXXXXXXX MANUFACTURING, INC.,
a South Carolina corporation
XXXXXXXX XXXXXX MILL, INC.,
an Alabama corporation
FTL REGIONAL SALES COMPANY, INC.,
a Delaware corporation
LEESBURG YARN XXXXX, INC.,
an Alabama corporation
SALEM SPORTSWEAR, INC.,
a New Hampshire corporation
FRUIT OF THE LOOM TRADING COMPANY,
a Delaware corporation
106
DEKALB KNITTING CORPORATION,
an Alabama corporation
By:
-----------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and a Financial Officer
of each of the foregoing entities
identified as a Guarantor
107
LENDERS:
NATIONSBANK, N.A.,
individually in its capacity as a Lender and in
its capacity as Administrative Agent and Collateral
Agent
By:
------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
108
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
BANKERS TRUST COMPANY
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
109
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE BANK OF NEW YORK
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
110
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
111
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE CHASE MANHATTAN BANK
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
112
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
ABN AMRO BANK N.V.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
113
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
114
SIGNATURE PAGE TO FOURTH AMENDMENT
TO FRUIT OF THE LOOM CREDIT AGREEMENT
BANK OF AMERICA NT & SA
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
115
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CREDIT AGRICOLE INDOSEUZ
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
116
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CREDIT LYONNAIS CHICAGO BRANCH
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
117
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
118
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE FIRST NATIONAL BANK OF CHICAGO
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
119
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE FUJI BANK, LIMITED
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
120
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
GULF INTERNATIONAL BANK B.S.C.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
121
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
HIBERNIA NATIONAL BANK
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
122
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
123
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
124
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
125
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CO_PERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
126
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
SOCIETE GENERALE
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
127
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
TORONTO DOMINION (TEXAS), INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
128
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
129
SIGNATURE PAGE TO FOURTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE ASAHI BANK, LTD., NEW YORK BRANCH
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
130
SECOND AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS SECOND AMENDED AND RESTATED PLEDGE AGREEMENT (this "Pledge
Agreement") is entered into as of March 10, 1999 among FRUIT OF THE LOOM, INC.,
a Delaware corporation ("Fruit of the Loom"), Fruit of the Loom, Ltd., a Cayman
Islands company (the "Parent") and certain Subsidiaries of Fruit of the Loom as
set forth on the signature pages hereto and as may from time to time become a
party hereto (together with Fruit of the Loom, individually a "Pledgor," and
collectively the "Pledgors") and NATIONSBANK, N.A., in its capacity as
collateral agent (in such capacity, the "Collateral Agent") for the Secured
Parties (as defined below).
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of
September 19, 1997 (as amended, modified, extended, renewed or replaced from
time to time and to which the Parent, by execution of a joinder agreement dated
as of March 10, 1999, has been added as a guarantor, the "Fruit of the Loom
Agreement") among Fruit of the Loom as borrower, the guarantors thereunder, the
lenders party thereto (the "Fruit of the Loom Lenders") and the Collateral
Agent, the Fruit of the Loom Lenders agreed to extend credit to Fruit of the
Loom upon the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to (a) that certain Indenture dated March 15, 1981
evidencing 7% Debentures issued by Northwest Industries, Inc. (predecessor in
interest to Fruit of the Loom) due March 15, 2011 in the original face amount of
$125,000,000, (b) that certain Indenture dated November 30, 1993 evidencing 6
1/2% Notes due 2003 issued by Fruit of the Loom in the original face amount of
$150,000,000 and (c) that certain Indenture dated November 30, 1993 evidencing 7
3/8% Debentures due 2023 issued by Fruit of the Loom in the original face amount
of $150,000,000 (collectively, the "Senior Note Indentures"), the holders of the
Senior Note Indentures (collectively, the "Noteholders") extended credit to
Fruit of the Loom upon the terms and subject to the conditions set forth
therein; and
WHEREAS, pursuant to that certain Credit Agreement to be entered into
as of March 24, 1999 (as amended, modified, extended, renewed or replaced from
time to time, the "Xxxxxx Agreement") among Xxxxxxx Xxxxxx as borrower,
NationsBank, N.A. as administrative agent, Credit Suisse First Boston as
syndication agent and the lenders party thereto (the "Xxxxxx Lenders"), the
Xxxxxx Lenders are agreeing to extend credit to Xxxxxxx Xxxxxx; provided, among
other conditions, that Fruit of the Loom, certain of its Subsidiaries and the
Parent execute that certain Guaranty of Payment (the "Xxxxxx Guaranty") to be
entered into as of March 24, 1999 in favor of NationsBank, N.A. as
Administrative Agent for the Xxxxxx Lenders, for the benefit of Xxxxxxx Xxxxxx;
and
WHEREAS, pursuant to the terms of the Fruit of the Loom Agreement, the
Senior Note Indentures and the Xxxxxx Guaranty, the Pledgors are obligated to
secure their obligations to the Fruit of the Loom Lenders, the Noteholders and
the Xxxxxx Lenders, respectively, in accordance with the terms of this Pledge
Agreement; and
131
WHEREAS, NationsBank, N.A. is acting as collateral agent for the
Secured Parties pursuant to the terms of this Pledge Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Fruit of the Loom Agreement or,
if the context so requires, in the respective Senior Credit Documents. As used
in this Pledge Agreement, the following terms shall have the meanings specified
below unless the context otherwise requires:
"Bank Credit Documents" means, collectively, the Credit Documents as
defined in the Fruit of the Loom Agreement and the Credit Documents, including,
without limitation, the Xxxxxx Guaranty, as defined in the Xxxxxx Agreement.
"Hedging Agreements" means, collectively, all interest rate protection
agreements, foreign currency exchange agreements, commodity purchase or option
agreements or other interest or exchange rate or commodity price hedging
agreements, in each case, entered into or purchased by Pledgor.
"Permitted Liens" means, collectively, all Permitted Liens as defined
in the Fruit of the Loom Agreement, all Permitted Liens as defined in the Xxxxxx
Agreement and all Permitted Liens as defined in any Senior Note Indenture.
"Required Lenders" has the meaning ascribed to such term in the Fruit
of the Loom Agreement.
"Secured Parties" means, collectively, the Noteholders, the Fruit of
the Loom Lenders, the Xxxxxx Lenders and any Affiliate of a Fruit of the Loom
Lender or a Xxxxxx Lender which has entered into a Hedging Agreement with a
Pledgor and "Secured Party" means any one of them.
"Senior Credit Documents" means the collective reference to the Bank
Credit Documents, the Senior Note Indentures and the Hedging Agreements.
2. Pledge and Grant of Security Interest. Subject to Sections 27, 28
and 30 hereof, to secure the prompt payment and performance in full when due,
whether by lapse of time or otherwise, of the Pledgor Obligations (as defined in
Section 3 hereof), each Pledgor hereby pledges and assigns to the Collateral
Agent, for the benefit of the Secured Parties, and grants to the Collateral
Agent, for the benefit of the Secured Parties, a continuing security interest in
any and all right, title and interest of such Pledgor in and to the following,
whether now owned or existing or owned, acquired, or arising hereafter
(collectively, the "Pledged Collateral"):
(a) Pledged Shares. (i) 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding shares of
capital stock owned by such Pledgor of each Material Domestic
Subsidiary as more fully described on Schedule 2(a) attached hereto and
(ii) 65% (or, if less, the full amount owned by such Pledgor) of the
issued and
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outstanding shares of each class of capital stock or other ownership
interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) ("Voting Equity") owned by such Pledgor of each Material
First Tier Foreign Subsidiary as more fully described on Schedule 2(a)
attached hereto, in each case together with the certificates (or other
agreements or instruments), if any, representing such shares, and all
options and other rights, contractual or otherwise, with respect
thereto (collectively, together with the shares of capital stock
described in Sections 2(b) and 2(c) below, the "Pledged Shares"),
including, but not limited to, the following:
(A) all shares or securities representing a dividend
on any of the Pledged Shares, or representing a distribution
or return of capital upon or in respect of the Pledged Shares,
or resulting from a stock split, revision, reclassification or
other exchange therefor, and any subscriptions, warrants,
rights or options issued to the holder of, or otherwise in
respect of, the Pledged Shares; and
(B) without affecting the obligations of such Pledgor
under any provision prohibiting such action hereunder, in the
event of any consolidation or merger in which a Subsidiary of
a Pledgor is not the surviving corporation, 100% (or, if less,
the full amount owned by such Pledgor) of the issued and
outstanding shares of capital stock owned by such Pledgor of
the successor corporation of a Material Domestic Subsidiary
formed by or resulting from such consolidation or merger and
65% (or, if less, the full amount owned by such Pledgor) of
the Voting Equity owned by such Pledgor of the successor
corporation of a Material First Tier Foreign Subsidiary formed
by or resulting from such consolidation or merger.
(b) Additional Shares. 100% (or, if less, the full amount
owned by such Pledgor) of the issued and outstanding shares of capital
stock owned by such Pledgor of any Person which hereafter becomes a
Material Domestic Subsidiary and 65% (or, if less, the full amount
owned by such Pledgor) of the Voting Equity owned by such Pledgor of
any Person which hereafter becomes a Material First Tier Foreign
Subsidiary, including, without limitation, the certificates
representing such shares (provided, however, that no Person that is a
Foreign Subsidiary shall be required to pledge any shares hereunder).
(c) Other Equity Interests. Any and all other equity interests
of each Pledgor in any Material Domestic Subsidiary or any Material
First Tier Foreign Subsidiary.
(d) Proceeds. All proceeds and products of the foregoing,
however and whenever acquired and in whatever form.
Without limiting the generality of the foregoing, it is hereby
specifically understood and agreed that a Pledgor may from time to time
hereafter deliver additional shares of stock to the Collateral Agent as
collateral security for the Pledgor Obligations. Upon delivery to the Collateral
Agent, such additional shares of stock shall be deemed to be part of the Pledged
Collateral of such Pledgor and shall be subject to the terms of this Pledge
Agreement whether or not Schedule 2(a) is amended to refer to such additional
shares.
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3. Security for Pledgor Obligations. The security interest created
hereby in the Pledged Collateral of each Pledgor constitutes continuing
collateral security for all of the following, whether now existing or hereafter
incurred (the "Pledgor Obligations"):
(a) The prompt performance and observance by each Pledgor of
all of its obligations under the Senior Credit Documents, including,
without limitation, all guaranty obligations arising out of Section 4
of the Fruit of the Loom Agreement, all obligations under the Xxxxxx
Guaranty, all obligations under the Senior Note Indentures and all
obligations arising under any Hedging Agreement; and
(b) All other indebtedness, liabilities and obligations of any
kind or nature, now existing or hereafter arising, owing from any
Pledgor to any Secured Party or the Collateral Agent pursuant to or in
connection with a transaction contemplated by the Senior Credit
Documents, howsoever evidenced, created, incurred or acquired, whether
primary, secondary, direct, contingent, or joint and several,
including, without limitation, all obligations and liabilities incurred
in connection with collecting and enforcing the Pledgor Obligations.
4. Delivery of the Pledged Collateral. Each Pledgor hereby agrees that:
(a) Delivery. (i) The Collateral Agent has received, on or
before the date hereof, all certificates representing the Pledged
Shares of such Pledgor and (ii) for so long as any Collateral Period
shall be in effect, each Pledgor shall, promptly upon the receipt
thereof by or on behalf of a Pledgor, all other certificates and
instruments constituting Pledged Collateral of a Pledgor. Prior to
delivery to the Collateral Agent, all such certificates and instruments
constituting Pledged Collateral of a Pledgor shall be held in trust by
such Pledgor for the benefit of the Collateral Agent pursuant hereto.
All such certificates shall be delivered in suitable form for transfer
by delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, substantially in the form provided in
Exhibit 4(a) attached hereto.
(b) Additional Securities. For so long as any Collateral
Period shall be in effect, if such Pledgor shall receive by virtue of
its being or having been the owner of any Pledged Collateral, any (i)
stock certificate, including without limitation, any certificate
representing a stock dividend or distribution in connection with any
increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock splits,
spin-off or split-off, promissory notes or other instrument; (ii)
option or right, whether as an addition to, substitution for, or an
exchange for, any Pledged Collateral or otherwise; (iii) dividends
payable in securities; or (iv) distributions of securities in
connection with a partial or total liquidation, dissolution or
reduction of capital, capital surplus or paid-in surplus, then such
Pledgor shall receive such stock certificate, instrument, option, right
or distribution in trust for the benefit of the Collateral Agent, shall
segregate it from such Pledgor's other property and shall deliver it
forthwith to the Collateral Agent in the exact form received together
with any necessary endorsement and/or appropriate stock power duly
executed in blank, substantially in the form provided in Exhibit 4(a),
to be held by the Collateral Agent as Pledged Collateral and as further
collateral security for the Pledgor Obligations.
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(c) Financing Statements. Upon the occurrence of any
Collateral Effective Date and so long as any Collateral Period shall be
in effect, each Pledgor shall execute and deliver to the Collateral
Agent such Uniform Commercial Code or other applicable financing
statements or other documents as may be reasonably requested by the
Collateral Agent in order to perfect and protect the security interest
created hereby in the Pledged Collateral of such Pledgor.
5. Representations and Warranties. Each Pledgor hereby represents and
warrants to the Collateral Agent, for the benefit of the Secured Parties, that
so long as any Collateral Period shall be in effect:
(a) Authorization of Pledged Shares. The Pledged Shares are
duly authorized and validly issued, are fully paid and nonassessable,
except as set forth on Schedule 6.15 to the Fruit of the Loom
Agreement, and are not subject to the preemptive rights of any Person.
All other shares of stock constituting Pledged Collateral will be duly
authorized and validly issued, fully paid and nonassessable, except as
set forth on Schedule 6.15 to the Fruit of the Loom Agreement, and not
subject to the preemptive rights of any Person.
(b) Title. Each Pledgor has good and indefeasible title to the
Pledged Collateral of such Pledgor and will at all times be the legal
and beneficial owner of such Pledged Collateral free and clear of any
Lien, other than Permitted Liens. There exists no "adverse claim"
within the meaning of Section 8-302 of the Uniform Commercial Code as
in effect in the State of North Carolina (the "UCC") with respect to
the Pledged Shares of such Pledgor.
(c) Exercising of Rights. To its knowledge, the exercise by
the Collateral Agent of its rights and remedies hereunder will not
violate any law or governmental regulation or any material contractual
restriction binding on or affecting a Pledgor or any of its property.
(d) Pledgor's Authority. Except for authorizations, approvals
or actions which have been obtained, or notices or filings which have
been made, and unless the failure to obtain any such authorization,
approval or action, or to make any such notice or filing, would not
have or be reasonably expected to impair the validity of the pledges
and grants of security interests pursuant to Section 2 hereof, no
authorization, approval or action by, and no notice or filing with any
Governmental Authority or with the issuer of any Pledged Stock is
required either (i) for the pledge made by a Pledgor or for the
granting of the security interest by a Pledgor pursuant to this Pledge
Agreement or (ii) for the exercise by the Collateral Agent or the
Secured Parties of their rights and remedies hereunder (except as may
be required by laws affecting the offering and sale of securities).
(e) Security Interest/Priority. This Pledge Agreement creates
a valid security interest in favor of the Collateral Agent, for the
benefit of the Secured Parties, in the Pledged Collateral. The taking
possession by the Collateral Agent of the certificates representing the
Pledged Shares and all other certificates and instruments constituting
Pledged Collateral will perfect and establish the first priority of the
Collateral Agent's security interest in the Pledged Shares and, when
properly perfected by filing, registration
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or otherwise pursuant to the applicable laws of all relevant
jurisdictions, in all other Pledged Collateral represented by such
Pledged Shares and instruments securing the Pledgor Obligations. Except
as set forth in this Section 5(e), no action is necessary to perfect or
otherwise protect such security interest.
(f) No Other Shares. No Pledgor owns any shares of stock
required to be pledged hereunder other than as set forth on Schedule
2(a) attached hereto.
(g) Name; Chief Executive Office; Books and Records. Each
Pledgor's legal name is as shown in this Pledge Agreement and no
Pledgor has in the past four months changed its name or been a party to
a merger, consolidation or other change in structure other than as set
forth on Schedule 5(g)(i) attached hereto. Each Pledgor's chief
executive office and chief place of business are (and for the prior
four months have been) located at the locations set forth on Schedule
5(g)(ii) attached hereto, and each Pledgor keeps its books and records
at such locations.
(h) Binding Agreement. This Pledge Agreement has been duly
authorized, executed and delivered by the Pledgors and constitutes a
legal, valid and binding obligation of the Pledgors enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy or insolvency laws or by general principles of
equity;
6. Covenants. Each Pledgor hereby covenants that, so long as any
Collateral Period shall be in effect, such Pledgor shall:
(a) Books and Records. Xxxx its books and records (and shall
cause the issuer of the Pledged Shares of such Pledgor to xxxx its
books and records) to reflect the security interest granted to the
Collateral Agent, for the benefit of the Secured Parties, pursuant to
this Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and he
claims and demands of all other parties claiming an interest therein,
keep the Pledged Collateral free from all Liens, except for Permitted
Liens, and not sell, exchange, transfer, assign, lease or, otherwise
dispose of Pledged Collateral of such Pledgor or any interest therein,
except as permitted under the respective Senior Credit Documents.
(c) Further Assurances. Promptly execute and deliver at its
expense all further instruments and documents and take all further
action that may be necessary and desirable or that the Collateral Agent
may reasonably request in order to (i) perfect and protect the security
interest created hereby in the Pledged Collateral of such Pledgor
(including without limitation any and all action necessary to satisfy
the Collateral Agent that the Collateral Agent has obtained a first
priority perfected security interest in any capital stock); (ii) enable
the Collateral Agent to exercise and enforce its rights and remedies
hereunder in respect of the Pledged Collateral of such Pledgor; and
(iii) otherwise effect the purposes of this Pledge Agreement,
including, without limitation and if requested by the Collateral Agent
upon the occurrence and during the continuation of an Event of Default,
delivering to the Collateral Agent irrevocable proxies in respect of
the Pledged Collateral of such Pledgor.
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(d) Amendments. Not make or consent to any amendment or other
modification or waiver with respect to any of the Pledged Collateral of
such Pledgor or enter into any agreement or allow to exist any
restriction with respect to any of the Pledged Collateral of such
Pledgor other than pursuant hereto or as may be permitted under the
Senior Credit Documents.
(e) Compliance with Securities Laws. File all reports and
other information now or hereafter required to be filed by such Pledgor
with the United States Securities and Exchange Commission and any other
state, federal or foreign agency in connection with the ownership of
the Pledged Collateral of such Pledgor.
(f) Change in Location. Not, without providing 30 days prior
written notice to the Collateral Agent and without filing such
amendments to any previously filed financing statements as the
Collateral Agent may require, (a) change the location of its chief
executive office and chief place of business (as well as its books and
records) from the locations set forth on Schedule 5(g) hereto or (b)
change its name or be party to a merger, consolidation or other change
in structure; provided, however, that subclause (b) hereof shall not
prevent consummation of the transactions permitted under the Fruit of
the Loom Agreement so long as (i) such Pledgor remains in compliance
with the provisions of subclause (a) above and (ii) in any such event,
notice to the Collateral Agent of any such name change or merger,
consolidation or other change in structure is given, and the filing of
any such amendments to previously filed financing statements occurs,
prior to such consummation.
7. Advances by Secured Parties. On failure of any Pledgor to perform
any of the covenants and agreements contained herein, and provided that either
(a) 10 Business Days have elapsed after notice of such failure was given by the
Collateral Agent to such Pledgor or (b) prompt action by the Collateral Agent is
necessary to protect the rights of the Secured Parties in the Pledged
Collateral, the Collateral Agent may, at its sole option and in its sole
discretion, perform the same and in so doing may expend such sums as the
Collateral Agent may reasonably deem advisable in the performance thereof,
including, without limitation, the payment of any insurance premiums, the
payment of any taxes, a payment to obtain a release of a Lien or potential Lien,
expenditures made in defending against any adverse claim and all other
expenditures which the Collateral Agent or the Secured Parties may make for the
protection of the security hereof or which it or they may be compelled to make
by operation of law. All such sums and amounts so expended shall be repayable by
the Pledgors on a joint and several basis promptly upon timely notice thereof
and demand therefor, shall constitute additional Pledgor Obligations and shall
bear interest from the date said amounts are expended at the default rate
specified in Section 3.1(b) of the Fruit of the Loom Agreement for Revolving
Loans that are Base Rate Loans. No such performance of any covenant or agreement
by the Collateral Agent or the Secured Parties on behalf of any Pledgor, and no
such advance or expenditure therefor, shall relieve the Pledgors of any default
under the terms of this Pledge Agreement or any Senior Credit Document. The
Secured Parties may make any payment hereby authorized in accordance with any
xxxx, statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy of such
xxxx, statement or estimate or into
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the validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by a Pledgor
in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.
8. Events of Default.
The occurrence and continuation of an event which under any Senior
Credit Document would constitute an Event of Default shall be an Event of
Default hereunder (an "Event of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and during the continuation thereof, the Collateral Agent and
the Secured Parties shall have, in respect of the Pledged Collateral of
any Pledgor, in addition to the rights and remedies provided herein, in
the Senior Credit Documents, or by law, the rights and remedies of a
secured party under the UCC or any other applicable law.
(b) Sale of Pledged Collateral. Upon the occurrence of an
Event of Default and during the continuation thereof, without limiting
the generality of this Section and without notice, the Collateral Agent
may, in its sole discretion, sell or otherwise dispose of or realize
upon the Pledged Collateral, or any part thereof, in one or more
parcels, at public or private sale, at any exchange or broker's board
or elsewhere, at such price or prices and on such other terms as the
Collateral Agent may deem commercially reasonable, for cash, credit or
for future delivery or otherwise in accordance with applicable law. To
the extent permitted by law, any Secured Party may in such event bid
for the purchase of such securities. Each Pledgor agrees that, to the
extent notice of sale shall be required by law and has not been waived
by such Pledgor, any requirement of reasonable notice shall be met if
notice, specifying the place of any public sale or the time after which
any private sale is to be made, is personally served on or mailed,
postage prepaid, to such Pledgor, in accordance with the notice
provisions of Section 17 hereof at least 10 Business Days before the
time of such sale. The Collateral Agent shall not be obligated to make
any sale of Pledged Collateral of such Pledgor regardless of notice of
sale having been given. The Collateral Agent 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.
(c) Private Sale. Upon the occurrence of an Event of Default
and during the continuation thereof, the Pledgors recognize that the
Collateral Agent may deem it impracticable to effect a public sale of
all or any part of the Pledged Shares or any of the securities
constituting Pledged Collateral and that the Collateral Agent may,
therefore, determine to make one or more private sales of any such
securities to a restricted group of purchasers who will be obligated to
agree, among other things, to acquire such securities for their own
account, for investment and not with a view to the distribution or
resale thereof. Each Pledgor acknowledges that any such private sale
may be at prices and on terms less favorable to the seller than the
prices and other terms which might have been obtained at a public sale
and, notwithstanding the foregoing, agrees that such private sale shall
be deemed to have been made in a commercially reasonable manner and
that the
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Collateral Agent shall have no obligation to delay sale of any such
securities for the period of time necessary to permit the issuer of
such securities to register such securities for public sale under the
Securities Act of 1933. Each Pledgor further acknowledges and agrees
that any offer to sell such securities which has been (i) publicly
advertised on a bona fide basis in a newspaper or other publication of
general circulation in the financial community of New York, New York or
Chicago, Illinois (to the extent that such offer may be advertised
without prior registration under the Securities Act of 1933), or (ii)
made privately in the manner described above shall be deemed to involve
a "public sale" under the UCC, notwithstanding that such sale may not
constitute a "public offering" under the Securities Act of 1933, and
the Collateral Agent may, in such event, bid for the purchase of such
securities.
(d) Retention of Pledged Collateral. In addition to the rights
and remedies hereunder, upon the occurrence and during the continuance
of an Event of Default, the Collateral Agent may, after providing the
notices required by Section 9-505(2) of the UCC or otherwise complying
with the requirements of applicable law of the relevant jurisdiction,
retain all or any portion of the Pledged Collateral in satisfaction of
the Pledgor Obligations. Unless and until the Collateral Agent shall
have provided such notices, however, the Collateral Agent shall not be
deemed to have retained any Pledged Collateral in satisfaction of any
Pledgor Obligations for any reason.
(e) Deficiency. In the event that the proceeds of any sale,
collection or realization are insufficient to pay all amounts to which
the Collateral Agent or the Secured Parties are legally entitled, the
Pledgors shall be jointly and severally liable for the deficiency,
together with interest thereon at the default rate specified in Section
3.1(b) of the Fruit of the Loom Agreement for Revolving Loans that are
Base Rate Loans, together with the costs of collection and the
reasonable, documented fees of any attorneys employed by the Collateral
Agent to collect such deficiency. Any surplus remaining after the full
payment and satisfaction of the Pledgor Obligations shall be returned
to the Pledgors or to whomsoever a court of competent jurisdiction
shall determine to be entitled thereto.
10. Rights of the Collateral Agent.
(a) Power of Attorney. In addition to other powers of attorney
contained herein, each Pledgor hereby designates and appoints the
Collateral Agent, on behalf of the Secured Parties, and each of its
designees or agents as attorney-in-fact of such Pledgor, irrevocably
and with power of substitution, with authority to take any or all of
the following actions upon the occurrence and during the continuance of
an Event of Default:
(i) to demand, collect, settle, compromise,
adjust and give discharges and releases concerning the Pledged
Collateral of such Pledgor, all as the Collateral Agent may
reasonably determine;
(ii) to commence and prosecute any actions at
any court for the purposes of collecting any of the Pledged
Collateral of such Pledgor and enforcing any other right in
respect thereof;
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(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Collateral Agent may deem reasonably
appropriate;
(iv) to pay or discharge taxes, liens, security
interests, or other encumbrances levied or placed on or
threatened against the Pledged Collateral of such Pledgor;
(v) to direct any parties liable for any payment
under any of the Pledged Collateral to make payment of any and
all monies due and to become due thereunder directly to the
Collateral Agent or as the Collateral Agent shall direct;
(vi) to receive payment of and receipt for any
and all monies, claims, and other amounts due and to become
due at any time in respect of or arising out of any Pledged
Collateral of such Pledgor;
(vii) to sign and endorse any drafts,
assignments, proxies, stock powers, verifications, notices and
other documents relating to the Pledged Collateral of such
Pledgor;
(viii) to settle, compromise or adjust any suit,
action or proceeding described above and, in connection
therewith, to give such discharges or releases as the
Collateral Agent may deem reasonably appropriate;
(ix) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, pledge agreements, affidavits, notices
and other agreements, instruments and documents that the
Collateral Agent may determine necessary in order to perfect
and maintain the security interests and liens granted in this
Pledge Agreement and in order to fully consummate all of the
transactions contemplated therein;
(x) to exchange any of the Pledged Collateral of
such Pledgor or other property upon any merger, consolidation,
reorganization, recapitalization or other readjustment of the
issuer thereof and, in connection therewith, deposit any of
the Pledged Collateral of such Pledgor with any committee,
depository, transfer agent, registrar or other designated
agency upon such terms as the Collateral Agent may determine;
(xi) to vote for a shareholder resolution, or to
sign an instrument in writing, sanctioning the transfer of any
or all of the Pledged Shares of such Pledgor into the name of
the Collateral Agent or one or more of the Secured Parties or
into the name of any transferee to whom the Pledged Shares of
such Pledgor or any part thereof may be sold pursuant to
Section 9 hereof; and
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(xii) to do and perform all such other acts and
things as the Collateral Agent may reasonably deem to be
necessary, proper or convenient in connection with the Pledged
Collateral of such Pledgor.
This power of attorney is a power coupled with an interest and shall be
irrevocable for so long as any Collateral Period shall be in effect.
The Collateral Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly
or implicitly granted to the Collateral Agent in this Pledge Agreement,
and shall not be liable for any failure to do so or any delay in doing
so. The Collateral Agent shall not be liable for any act or omission or
for any error of judgment or any mistake of fact or law in its
individual capacity or its capacity as attorney-in-fact except acts or
omissions resulting from its gross negligence or willful misconduct.
This power of attorney is conferred on the Collateral Agent solely to
protect, preserve and realize upon its security interest in Pledged
Collateral.
(b) Performance by the Collateral Agent of Pledgor's
Obligations. If any Pledgor fails to perform any agreement or
obligation contained herein and either (i) 10 Business Days have
elapsed after notice of such failure was given by the Collateral Agent
to such Pledgor or (ii) prompt action by the Collateral Agent is
necessary to protect the rights of the Secured Parties in the Pledged
Collateral, the Collateral Agent itself may perform, or cause
performance of, such agreement or obligation, and the reasonable,
documented expenses of the Collateral Agent incurred in connection
therewith shall be payable by the Pledgors on a joint and several basis
pursuant to Section 27 hereof.
(c) Assignment by the Collateral Agent. The Collateral Agent
may from time to time, subject to the provisions of the respective
Senior Credit Documents, assign the Pledgor Obligations and any portion
thereof and/or the Pledged Collateral and any portion thereof, and the
assignee shall be entitled to all of the rights and remedies of the
Collateral Agent under this Pledge Agreement in relation thereto.
(d) The Collateral Agent's Duty of Care. Other than the
exercise of reasonable care to assure the safe custody of the Pledged
Collateral while being held by the Collateral Agent hereunder, the
Collateral Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that each of the
Pledgors shall be responsible for preservation of all rights in the
Pledged Collateral of such Pledgor, and the Collateral Agent shall be
relieved of all responsibility for Pledged Collateral upon surrendering
it or tendering the surrender of it to the Pledgors. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody
and preservation of the Pledged Collateral in its possession if such
Pledged Collateral is accorded treatment substantially equal to that
which the Collateral Agent accords its own property, which shall be no
less than the treatment employed by a reasonable and prudent agent in
the industry, it being understood that the Collateral Agent shall not
have responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Pledged Collateral, whether or not the Collateral Agent
has or is deemed to have knowledge of such matters; or (ii) taking any
necessary steps to preserve rights against any parties with respect to
any Pledged Collateral.
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(e) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing, to the extent permitted by law,
each Pledgor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral of such
Pledgor or any part thereof for any purpose not inconsistent
with the terms of this Pledge Agreement or any Senior Credit
Document; and
(ii) Upon the occurrence and during the
continuance of an Event of Default, all rights of a Pledgor to
exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to paragraph (i) of
this Section shall cease and all such rights shall thereupon
become vested in the Collateral Agent which shall then have
the sole right to exercise such voting and other consensual
rights.
(f) Dividend Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing and subject to Section 4(b) hereof,
each Pledgor may receive and retain any and all dividends
(other than stock dividends and other dividends constituting
Pledged Collateral which are addressed hereinabove) or
interest paid in respect of the Pledged Collateral to the
extent they are allowed under the respective Senior Credit
Documents.
(ii) Upon the occurrence and during the
continuance of an Event of Default:
(A) all rights of a Pledgor to receive the
dividends and interest payments which it would
otherwise be authorized to receive and retain
pursuant to paragraph (i) of this Section shall cease
and all such rights shall thereupon be vested in the
Collateral Agent which shall then have the sole right
to receive and hold as Pledged Collateral such
dividends and interest payments; and
(B) all dividends and interest payments
which are received by a Pledgor contrary to the
provisions of paragraph (A) of this Section shall be
received in trust for the benefit of the Collateral
Agent, shall be segregated from other property or
funds of such Pledgor, and shall be forthwith paid
over to the Collateral Agent as Pledged Collateral in
the exact form received, to be held by the Collateral
Agent as Pledged Collateral and as further collateral
security for the Pledgor Obligations.
(g) Release of Pledged Collateral. The Collateral Agent may
release any of the Pledged Collateral from this Pledge Agreement or may
substitute any of the Pledged Collateral for other Pledged Collateral
without altering, varying or diminishing in any way the force, effect,
lien, pledge or security interest of this Pledge Agreement as to any
Pledged Collateral
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not expressly released or substituted, and this Pledge Agreement shall
continue as a first priority lien on all Pledged Collateral not
expressly released or substituted.
11. Rights of Collateral Agent and Required Lenders. Following the
occurrence of an Event of Default, the Collateral Agent shall be entitled to
enforce the rights of the Secured Parties hereunder or shall take such action as
requested in writing by the Required Lenders. In the event the Collateral Agent
refuses or fails to comply with written instructions from the Required Lenders
for a period of thirty days after such written instructions shall have been
received by the Collateral Agent, any Secured Party shall (after having received
written instructions from the Required Lenders) have the right to carry out such
written instructions on behalf of the Secured Parties as a whole. No Secured
Party (other than the Collateral Agent) shall have any right in any manner
whatsoever to enforce any right under this Pledge Agreement, except as herein
provided.
12. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any payments in respect of the Pledgor
Obligations and any proceeds of any Pledged Collateral, when received by the
Collateral Agent or any of the Secured Parties in cash or its equivalent, will
be applied in reduction of the Pledgor Obligations as follows:
(a) FIRST, to the payment of all reasonable, documented
out-of-pocket costs and expenses (including without limitation
reasonable, documented attorneys' fees) of the Collateral Agent or a
Secured Party in connection with enforcing the rights of the Secured
Parties under the Senior Credit Documents and any protective advances
made by the Collateral Agent or a Secured Party, pro rata as set forth
below;
(b) SECOND, to the payment of all accrued fees and interest
payable to the Collateral Agent, the Secured Parties under the Senior
Credit Documents, pro rata as set forth below;
(c) THIRD, to the payment of the outstanding principal amount
of the Loans and unreimbursed drawings under Letters of Credit and to
the payment or cash collateralization of the outstanding LOC
Obligations under the Bank Credit Documents and the payment of all
outstanding principal amounts under the Senior Note Indentures, pro
rata as set forth below;
(d) FOURTH, to any principal amounts outstanding under Hedging
Agreements, pro rata as set forth below;
(e) FIFTH, to all other obligations which shall have become
due and payable under the Senior Credit Documents and not repaid
pursuant to clauses "FIRST" through "FOURTH" above, pro rata as set
forth below; and
(f) SIXTH, to the payment of the surplus, if any, to whomever
may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Secured Parties shall receive an amount
equal to its pro rata share of amounts available to be
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143
applied above (based on the proportion that the then outstanding obligations
owed by the Pledgors to such Secured Party under the Senior Credit Documents
bears to the aggregate outstanding obligations of the Pledgors to the Secured
Parties under the Senior Credit Documents); and (iii) to the extent that any
amounts available for distribution pursuant to clause "THIRD" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit
under any Bank Credit Document, such amounts shall be held by the Collateral
Agent in a cash collateral account and applied (x) first, to reimburse the
Issuing Lenders under each such Bank Credit Document from time to time for any
drawings under such Letters of Credit and (y) then, following the expiration of
all such Letters of Credit, without duplication, to all other obligations of the
types described in clauses "THIRD" and "FIFTH" above. Each Pledgor irrevocably
waives the right to direct the application of such payments and proceeds and
acknowledges and agrees that the Collateral Agent shall have the continuing and
exclusive right to apply and reapply any and all such payments and proceeds in
the Collateral Agent's sole discretion, notwithstanding any entry to the
contrary upon any of its books and records.
13. Costs of Counsel/Expenses. At all times hereafter, the Pledgors
agree to promptly pay upon demand any and all reasonable, documented costs and
expenses of the Collateral Agent or the Secured Parties as necessary to protect
the Pledged Collateral or to exercise any rights or remedies under this Pledge
Agreement or with respect to any Pledged Collateral, including, without
limitation, the costs of counsel to the Collateral Agent or the Lenders. All of
the foregoing costs and expenses shall constitute Pledgor Obligations hereunder.
14. Continuing Agreement.
(a) This Pledge Agreement shall be a continuing agreement in
every respect and shall remain in full force and effect during each
Collateral Period so long as any of the Pledgor Obligations remain
outstanding or any Senior Credit Document is in effect, and until all
of the commitments thereunder shall have terminated (other than any
obligations with respect to the indemnities and the representations and
warranties set forth in the Senior Credit Documents). Upon a Collateral
Termination Date or upon such payment and termination, this Pledge
Agreement shall no longer be effective until another Collateral
Effective Date occurs and the Collateral Agent and the Secured Parties
shall, upon the request and at the expense of the Pledgors, forthwith
release all of its liens and security interests hereunder and shall
execute and deliver all Uniform Commercial Code termination statements
and/or other documents reasonably requested by the Pledgors evidencing
such termination. Notwithstanding the foregoing, all releases and
indemnities provided hereunder shall survive termination of this Pledge
Agreement or any period which is not a Collateral Period, subject to
the provisions of the respective Senior Credit Documents.
(b) Provided a Collateral Period is then in effect, this
Pledge Agreement shall continue to be effective or be automatically
reinstated, as the case may be, if at any time payment, in whole or in
part, of any of the Pledgor Obligations is rescinded or must otherwise
be restored or returned by the Collateral Agent or any Secured Party as
a preference, fraudulent conveyance or otherwise under any bankruptcy,
insolvency or similar law, all as though such payment had not been
made; provided that in the event payment of all or any part of the
Pledgor Obligations is rescinded or must be restored or returned, all
reasonable, documented costs and expenses (including without limitation
any
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144
reasonable, documented legal fees and disbursements) incurred by the
Collateral Agent or any Secured Party in defending and enforcing such
reinstatement shall be deemed to be included as a part of the Pledgor
Obligations.
15. Amendments; Waivers; Modifications. This Pledge Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated except by a written instrument executed by the Pledgors and the
Collateral Agent; provided that the Collateral Agent may only execute such
written instrument upon the consent of the Required Lenders (or the Fruit of the
Loom Lenders, as may be required by the terms of the Fruit of the Loom
Agreement).
16. Successors in Interest. This Pledge Agreement shall create a
continuing security interest in the Pledged Collateral and shall be binding upon
each Pledgor, its successors and assigns and shall inure, together with the
rights and remedies of the Collateral Agent and the Secured Parties hereunder,
to the benefit of the Collateral Agent and the Secured Parties and their
successors and permitted assigns; provided, however, that none of the Pledgors
may assign its rights or delegate its duties hereunder without the prior written
consent of the Required Lenders (or the Fruit of the Loom Lenders as may be
required by the terms of the Fruit of the Loom Agreement). To the fullest extent
permitted by law, each Pledgor hereby releases the Collateral Agent and each
Secured Party , and its successors and assigns, from any liability for any act
or omission relating to this Pledge Agreement or the Pledged Collateral, except
for any liability arising from the gross negligence or willful misconduct of the
Collateral Agent, or such Secured Party, or its officers, employees or agents.
17. Notices. All notices required or permitted to be given under this
Pledge Agreement shall be as follows:
to a Pledgor: [Name of Pledgor]
c/o Fruit of the Loom, Inc.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Sears Tower
Xxxxxxx, Xxxxxxxx 00000
Attn: Vice President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: [Name of Pledgor]
c/o Fruit of the Loom, Inc.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Sears Tower
Xxxxxxx, Xxxxxxxx 00000
Attn: Vice President and Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
to the
Collateral Agent: NationsBank, N.A.
Agency Services
Xxxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx Xxxx
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145
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: NationsBank, N.A.
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18. Counterparts. This Pledge Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
19. Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Pledge Agreement.
20. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
Any legal action or proceeding with respect to this Pledge Agreement
may be brought in the courts of the State of North Carolina, or of the
United States for the Western District of North Carolina, and, by
execution and delivery of this Pledge Agreement, each Pledgor hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts. Each
Pledgor further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section 17
hereof, such service to become effective 30 days after such mailing.
Nothing herein shall affect the right of the Collateral Agent to serve
process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Pledgor in any other
jurisdiction.
(b) Each Pledgor hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Pledge Agreement brought in the courts referred to in
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146
subsection (a) hereof and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
21. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES TO THIS PLEDGE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS PLEDGE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Severability. If any provision of any of the Pledge Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
23. Entirety. This Pledge Agreement and the Senior Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Senior Credit Documents, or
the transactions contemplated herein and therein.
24. Survival. Subject to the provisions of the respective Senior Credit
Documents, all representations and warranties of the Pledgors hereunder shall
survive the execution and delivery of this Pledge Agreement and the Senior
Credit Documents, the delivery of the Notes and the making of the Loans and the
issuance of the Letters of Credit under the Fruit of the Loom Agreement, the
incurrence of obligations under the Xxxxxx Guaranty and the incurrence of
indebtedness under the Senior Note Indentures.
25. Other Security. To the extent that any of the Pledgor Obligations
are now or hereafter secured by property other than the Pledged Collateral
(including, without limitation, real and other personal property owned by a
Pledgor), or by a guarantee, endorsement or property of any other Person, then
the Collateral Agent and the Secured Parties shall have the right to proceed
against such other property, guarantee or endorsement upon the occurrence of any
Event of Default, and the Collateral Agent and the Secured Parties have the
right, in their sole discretion, to determine which rights, security, liens,
security interests or remedies the Collateral Agent and the Secured Parties
shall at any time pursue, relinquish, subordinate, modify or take with respect
thereto, without in any way modifying or affecting any of them or any of the
Collateral Agent's and the Secured Parties' rights or the Pledgor Obligations
under this Pledge Agreement, or under any of the Senior Credit Documents.
26. Other Pledge Agreements. The Pledgors hereby agree that all other
Pledge Agreements (including, without limitation, that certain Deed of Charge
Over Shares Re: FOL International dated as of October 15, 1998 between Union
Underwear Company, Inc. and NationsBank, N.A.) shall be deemed to be amended as
of the date hereof to give effect to the modifications herein, including,
without limitation, the addition of the Xxxxxx Lenders as Secured Parties under
such other Pledge Agreements.
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27. Joint and Several Obligations of Pledgors.
(a) Each of the Pledgors is accepting joint and several
liability hereunder in consideration of the financial accommodation to
be provided by the Secured Parties under the Senior Credit Documents,
for the mutual benefit, directly and indirectly, of each of the
Pledgors and in consideration of the undertakings of each of the
Pledgors to accept joint and several liability for the obligations of
each of them.
(b) Each of the Pledgors jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Pledgors with respect to the payment and performance of all of the
Pledgor Obligations arising under this Pledge Agreement and the Senior
Credit Documents, it being the intention of the parties hereto that all
the Pledgor Obligations shall be the joint and several obligations of
each of the Pledgors without preferences or distinction among them.
(c) Notwithstanding any provision to the contrary contained
herein or in any other of the Senior Credit Documents, to the extent
the obligations of a Pledgor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of
any applicable state or federal law relating to fraudulent conveyances
or transfers) then the obligations of each Pledgor hereunder shall be
limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the
Bankruptcy Code).
28. Effective Period. It is understood and agreed that, as of the date
hereof, a Collateral Effective Date has occurred and a Collateral Period is in
effect. However, notwithstanding anything in this Pledge Agreement to the
contrary, the pledges and grants of security interests pursuant to Section 2
hereof, and the covenants and other agreements contained herein, shall be
effective only so long as a Collateral Period is in effect and is continuing,
and upon any Collateral Termination Date such pledges, grants of security
interests, covenants and other agreements shall cease to be effective
immediately and without any further action on the part of any of the parties
hereto and shall remain without effect for so long as no subsequent Collateral
Effective Date shall occur; provided that on any such subsequent Collateral
Effective Date, such pledges, grants of security interests, covenants and other
agreements shall again become effective immediately and without any further
action on the part of any of the parties hereto and shall remain effective for
the duration of any such subsequent Collateral Period.
29. Duties of Collateral Agent.
(a) The Collateral Agent shall not have any duty or obligation
to manage, control, use, sell, dispose of or otherwise deal with the
Pledged Collateral, or, to otherwise take or refrain from taking any
action under, or in connection with, this Pledge Agreement, except, as
expressly provided by the terms and conditions of this Pledge
Agreement. The Collateral Agent may take, but shall have no obligation
to take, any and all such actions under this Pledge Agreement or
otherwise as it shall deem to be in the best interests of the Secured
Parties in order to maintain the Pledged Collateral and protect and
preserve the Pledged Collateral and the rights of the Secured Parties.
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148
(b) The Collateral Agent shall not be responsible in any
manner whatsoever for the correctness of any recitals, statements,
representations or warranties contained herein. The Collateral Agent
makes no representation as to the value or condition of the Pledged
Collateral or any part thereof, as to the title of any of the Pledgors
or any of their Subsidiaries to the Pledged Collateral, as to the
security afforded by this Pledge Agreement or, as to the validity,
execution, enforceability, legality or sufficiency of this Pledge
Agreement, and the Collateral Agent shall incur no liability or
responsibility in respect of any such matters. The Collateral Agent
shall not be required to ascertain or inquire as to the performance by
any of the Pledgors or any of their Subsidiaries of their respective
Pledgor Obligations.
(c) The Collateral Agent shall not be responsible for insuring
the Pledged Collateral, for the payment of taxes, charges, assessments
or liens upon the Pledged Collateral or otherwise as to the maintenance
of the Pledged Collateral. The Pledged Collateral Agent shall have no
duty to any of the Pledgors or any of their Subsidiaries or to the
Secured Parties as to any Pledged Collateral in its possession or
control or in the possession or control of any agent or nominee of the
Collateral Agent or any income thereon or as to the preservation of
rights against prior parties or any other rights pertaining thereto,
except the duty to accord such of the Pledged Collateral as may be in
its possession substantially the same care as it accords its own assets
and the duty to account for monies received by it.
(d) The Collateral Agent may execute any of the powers granted
under this Pledge Agreement and perform any duty hereunder either
directly or by or through agents or attorneys-in-fact, and shall not be
responsible for the gross negligence or willful misconduct of any
agents or attorneys-in-fact selected by it with reasonable care and
without gross negligence or willful misconduct.
(e) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect notice or knowledge of the occurrence
of any Event of Default unless and until the Collateral Agent shall
have received a notice of Event of Default or a notice from any of the
Pledgors to the Collateral Agent in its capacity as Collateral Agent
indicating that an Event of Default has occurred. The Collateral Agent
shall have no obligation either prior to or after receiving such notice
to inquire whether an Event of Default has, in fact, occurred and shall
be entitled to rely conclusively, and shall be fully protected in so
relying, on any notice so furnished to it.
30. Limitation on Security Interest in Assets of Fruit of the Loom,
Ltd. Notwithstanding any provision in this Pledge Agreement to the contrary,
Fruit of the Loom, Ltd. is not pledging or granting a security interest in its
assets, including any capital stock owned by it, to secure the obligations under
the Xxxxxx Agreement and, unless (a) the Xxxxxx Lenders request that the assets
of Fruit of the Loom, Ltd. secure the obligations under the Xxxxxx Agreement and
(b) at the time of such request, such pledge would not violate any other
agreement to which Fruit of the Loom, Ltd. may be a party, Fruit of the Loom,
Ltd. shall not be deemed to have pledged or granted a security interest in its
assets in favor of the Xxxxxx Lenders, and the Xxxxxx Lenders shall
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149
have no rights in the assets of Fruit of the Loom, Ltd. This provision shall not
affect the rights of the Fruit of the Loom Lenders or the Noteholders in the
assets of Fruit of the Loom, Ltd.
31. Termination of Pledge Agreement. Notwithstanding any provision in
this Pledge Agreement to the contrary, in the event all of the Bank Credit
Documents and all obligations thereunder shall have terminated (other than such
obligations that by their terms are stated to survive termination of the Bank
Credit Documents) and no Loans, Letters of Credit or Commitments thereunder
shall remain outstanding, this Pledge Agreement shall immediately terminate and
cease to be effective and the Pledgors shall be released from all obligations
hereunder (other than such obligations that by their terms are stated to survive
the termination of this Pledge Agreement).
20
150
Each of the parties hereto has caused a counterpart of this Pledge
Agreement to be duly executed and delivered as of the date first above written.
FRUIT OF THE LOOM, INC.,
a Delaware corporation
By:
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
FRUIT OF THE LOOM, LTD.,
a Cayman Islands company
UNION UNDERWEAR COMPANY, INC.,
a New York corporation
ALICEVILLE COTTON MILL, INC.,
an Alabama corporation
THE B.V.D. LICENSING CORPORATION,
a Delaware corporation
FAYETTE COTTON MILL, INC.,
an Alabama corporation
FOL CARIBBEAN CORPORATION,
a Delaware corporation
FRUIT OF THE LOOM ARKANSAS, INC.,
an Arkansas corporation
FRUIT OF THE LOOM CARIBBEAN, INC.,
a Delaware corporation
FRUIT OF THE LOOM, INC.,
a New York corporation
FRUIT OF THE LOOM TEXAS, INC.,
a Texas corporation
FTL SALES COMPANY, INC.,
a New York corporation
151
GITANO FASHIONS LIMITED,
a Delaware corporation
GREENVILLE MANUFACTURING, INC.,
a Mississippi corporation
JET SEW TECHNOLOGIES, INC.,
a New York corporation
XXXXXX XXXXX, INC.,
a Louisiana corporation
PRO PLAYER, INC.,
a New York corporation
XXXXX APPAREL, INC.,
a Georgia corporation
XXXXXXX HOSIERY XXXXX, INC.,
a North Carolina corporation
SALEM SPORTSWEAR CORPORATION,
a Delaware corporation
XXXXXXX WAREHOUSE CORPORATION,
a Mississippi corporation
UNION SALES, INC.,
a Delaware corporation
UNION YARN XXXXX, INC.,
an Alabama corporation
XXXXXXXX MANUFACTURING, INC.,
a South Carolina corporation
XXXXXXXX XXXXXX MILL, INC.,
an Alabama corporation
FTL REGIONAL SALES COMPANY, INC.,
a Delaware corporation
LEESBURG YARN XXXXX, INC.,
an Alabama corporation
SALEM SPORTSWEAR, INC.,
a New Hampshire corporation
152
FRUIT OF THE LOOM TRADING COMPANY,
a Delaware corporation
DEKALB KNITTING CORPORATION,
an Alabama corporation
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and a
Financial Officer
of each of the foregoing
entities.
153
Accepted and agreed to in Charlotte, North Carolina as of the date
first above written.
NATIONSBANK, N.A.,
as Collateral Agent
By:
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
154
Schedule 2(a)
to
Pledge Agreement
dated as of March 10, 1999
in favor of NationsBank, N.A.
as Collateral Agent
PLEDGED STOCK
STATE (COUNTRY) NUMBER OF CERTIFICATE DATE OF
PLEDGOR NAME OF SUBSIDIARY OF INCORPORATION SHARES NUMBER CERTIFICATE
FRUIT OF THE LOOM, INC. Union Underwear Company, Inc. New York 100 2 7/25/85*
FRUIT OF THE LOOM, LTD. Fruit of the Loom, Inc. Delaware 66,851,070 1 3/4/99
UNION UNDERWEAR COMPANY, INC.
Aliceville Cotton Mill, Inc. Alabama 2,000 2 7/2/98
The BVD Licensing Corporation Delaware 1,000 3 7/2/98
Xxxxxx Xxxxx International
Corporation (Pro Player) New York 200 8 8/5/94
Fayette Cotton Mill, Inc. Alabama 2,000 2 7/2/98
FOL Caribbean Corporation Delaware 10 1 5/25/95
Fruit of the Loom Arkansas, Inc. Arkansas 10 2 7/2/98
Fruit of the Loom Caribbean, Inc. Delaware 10 2 7/2/98
Fruit of the Loom, Inc. New York 100 3 7/2/98
Fruit of the Loom Texas, Inc. Texas 10 2 7/2/98
FTL Sales Company, Inc. New York 100 12 7/2/98
Gitano Fashions Limited Delaware 1,000 1 3/11/94
Greenville Manufacturing, Inc. Mississippi 1,000 2 7/2/98
Jet Sew Technologies, Inc. New York 1,000 2 7/2/98
Leesburg Yarn Xxxxx, Inc. Alabama 10 2 7/2/98
Xxxxxx Xxxxx, Inc. Louisiana 100,000 2 7/2/98
Xxxxx Apparel, Inc. Georgia 1,000 2 7/2/98
Xxxxxxx Hosiery Xxxxx, Inc. North Carolina 769,978 187 7/2/98
Salem Sportswear Corporation Delaware 1,000 1 1/4/94
Xxxxxxx Warehouse Corporation Mississippi 1,000 2 7/2/98
Union Sales, Inc. Delaware 100 2 7/2/98
Union Yarn Xxxxx, Inc. Alabama 2,500 5 7/2/98
UNION UNDERWEAR COMPANY, INC. Xxxxxxxx Manufacturing, Inc. South Carolina 10 1 2/9/93
Xxxxxxxx Xxxxxx Mill, Inc. Alabama 2,000 2 7/2/98
--------------
*Replaced by Certificate No, 3 dated 7/27/98.
155
STATE (COUNTRY) NUMBER OF CERTIFICATE DATE OF
PLEDGOR NAME OF SUBSIDIARY OF INCORPORATION SHARES NUMBER CERTIFICATE
FTL SALES COMPANY, INC. FTL Regional Sales Company, Inc. Delaware 1,000 2 7/2/98
SALEM SPORTSWEAR CORPORATION Salem Sportswear Inc. New Hampshire 120 2 7/2/98
UNION SALES, INC. Fruit of the Loom Trading Company Delaware 10 2 7/2/98
UNION YARN XXXXX, INC. DeKalb Knitting Corporation Alabama 1,000 2 7/2/98
156
Schedule 5(g)(i)
to
Pledge Agreement
dated as of March 10, 1999
in favor of NationsBank, N.A.
as Collateral Agent
Changes of Name/Changes of Structure
On March 4, 1999, Fruit of the Loom, Inc. effected a corporate
reorganization pursuant to which Fruit of the Loom, Ltd., a Cayman Islands
company, became the parent holding company of Fruit of the Loom, Inc.
157
Schedule 5(g)(ii)
to
Pledge Agreement
dated as of March 10, 1999
in favor of NationsBank, N.A.
as Collateral Agent
Chief Executive Office
158
Exhibit 4(a)
to
Pledge Agreement
dated as of March 10, 1999
in favor of NationsBank, N.A.
as Collateral Agent
Irrevocable Stock Power
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following shares of capital stock of , a corporation:
------------ ----------
No. of Shares Certificate No.
------------- ---------------
and irrevocably appoints __________________________________ its agent and
attorney-in-fact to transfer all or any part of such capital stock and to take
all necessary and appropriate action to effect any such transfer. The agent and
attorney-in-fact may substitute and appoint one or more persons to act for him.
The effectiveness of a transfer pursuant to this stock power shall be subject to
any and all transfer restrictions referenced on the face of the certificates
evidencing such interest or in the certificate of incorporation or bylaws of the
subject corporation, to the extent they may from time to time exist.
----------------------------------
a corporation
--------------
By:-------------------------------
Name:
-----------------------------
Title:
----------------------------
000
XXXX XXXXXX XXXXXXXXX
THIS BOND PLEDGE AGREEMENT (this "Bond Pledge Agreement") is entered
into as of March 10, 1999 among UNION UNDERWEAR COMPANY, INC., a New York
corporation, (the "Pledgor") and NATIONSBANK, N.A., in its capacity as
collateral agent (in such capacity, the "Collateral Agent") for the Secured
Parties (as defined below).
W I T N E S S E T H
WHEREAS, pursuant to that certain Credit Agreement dated as of
September 19, 1997 (as amended, modified, extended, renewed or replaced from
time to time, the "Fruit of the Loom Agreement") among Fruit of the Loom, Inc.,
a Delaware corporation ("Fruit of the Loom") as borrower, the guarantors
thereunder, the lenders party thereto (the "Fruit of the Loom Lenders") and the
Collateral Agent, the Fruit of the Loom Lenders agreed to extend credit to Fruit
of the Loom upon the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to (a) that certain Indenture dated March 15, 1981
evidencing 7% Debentures issued by Northwest Industries, Inc. (predecessor in
interest to Fruit of the Loom) due March 15, 2011 in the original face amount of
$125,000,000, (b) that certain Indenture dated November 30, 1993 evidencing 6
1/2% Notes due 2003 issued by Fruit of the Loom in the original face amount of
$150,000,000 and (c) that certain Indenture dated November 30, 1993 evidencing 7
3/8% Debentures due 2023 issued by Fruit of the Loom in the original face amount
of $150,000,000 (collectively, the "Senior Note Indentures"), the holders of the
Senior Note Indentures (collectively, the "Noteholders") extended credit to
Fruit of the Loom upon the terms and subject to the conditions set forth
therein; and
WHEREAS, pursuant to that certain Credit Agreement to be entered into
as of March 24, 1999 (as amended, modified, extended, renewed or replaced from
time to time, the "Xxxxxx Agreement") among Xxxxxxx Xxxxxx as borrower,
NationsBank, N.A. as administrative agent, Credit Suisse First Boston as
syndication agent and the lenders party thereto (the "Xxxxxx Lenders"), the
Xxxxxx Lenders are agreeing to extend credit to Xxxxxxx Xxxxxx; provided, among
other conditions, that Fruit of the Loom and certain of its Subsidiaries execute
that certain Guaranty of Payment (the "Xxxxxx Guaranty") to be entered into as
of March 24, 1999 in favor of NationsBank, N.A. as Administrative Agent for the
Xxxxxx Lenders, for the benefit of Xxxxxxx Xxxxxx; and
WHEREAS, pursuant to the terms of the Fruit of the Loom Agreement, the
Senior Note Indentures and the Xxxxxx Guaranty, the Pledgor is obligated to
secure its obligations to the Fruit of the Loom Lenders, the Noteholders and the
Xxxxxx Lenders, respectively, in accordance with the terms of this Bond Pledge
Agreement; and
WHEREAS, NationsBank, N.A. is acting as collateral agent for the
Secured Parties pursuant to the terms of this Bond Pledge Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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1. Defined Terms. (a) All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Fruit of the Loom
Agreement or, if the context so requires, in the respective Senior Credit
Documents, and, if not defined therein, terms defined in the applicable
Indenture relating to the Bonds and used herein shall have the meanings given to
them in such Indenture.
(b) The following terms shall have the following meanings:
"Bank Credit Documents" means, collectively, the Credit
Documents as defined in the Fruit of the Loom Agreement and the Credit
Documents, including, without limitation, the Xxxxxx Guaranty, as
defined in the Xxxxxx Agreement.
"Bond Documents" means, collectively, all trust indentures,
agreements and other documents evidencing, executed in connection with
or relating to the Bonds, including, without limitation, all Mortgage
and Trust Indentures and all Equipment Mortgage and Trust Indentures
relating to the Bonds (collectively, the "Indentures").
"Bonds" means, collectively, those certain Industrial Revenue
or Equipment Revenue Bonds set forth on Schedule 2(a) attached hereto
owned by the Pledgor and any and all additions thereto, substitutions
thereof and exchanges therefor.
"Hedging Agreements" means, collectively, all interest rate
protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements, in each case, entered into or
purchased by the Pledgor.
"Issuers" means, collectively, the respective issuers of each
of the Bonds.
"Permitted Liens" means, collectively, all Permitted Liens as
defined in the Fruit of the Loom Agreement, all Permitted Liens as
defined in the Xxxxxx Agreement and all Permitted Liens as defined in
any Senior Note Indenture.
"Proceeds" means all proceeds as such term is defined in the
UCC in effect on the date hereof.
"Required Lenders" has the meaning ascribed to such term in
the Fruit of the Loom Agreement.
"Secured Obligations" means, collectively, (i) all of the
obligations, now existing or hereafter arising pursuant to the Senior
Credit Documents, owing from the Pledgor to any Secured Party or the
Collateral Agent, including, without limitation, all guaranty
obligations arising out of Section 4 of the Fruit of the Loom
Agreement, all obligations under the Xxxxxx Guaranty, all obligations
under the Senior Note Indentures and all obligations arising under any
Hedging Agreement; and (ii) all other indebtedness, liabilities and
obligations of any kind or nature, now existing or hereafter arising,
owing from the Pledgor to any Secured Party or the Collateral Agent
pursuant to or in connection with a transaction contemplated by the
Senior
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Credit Documents, howsoever evidenced, created, incurred or acquired,
whether primary, secondary, direct, contingent, or joint and several,
and all obligations and liabilities incurred in connection with
collecting and enforcing the foregoing.
"Secured Parties" means, collectively, the Noteholders, the
Fruit of the Loom Lenders, the Xxxxxx Lenders and any Affiliate of a
Fruit of the Loom Lender or a Xxxxxx Lender which has entered into a
Hedging Agreement with the Pledgor and "Secured Party" means any one of
them.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Documents" means, collectively, the Bank Credit
Documents, the Senior Note Indentures and the Hedging Agreements.
"Trustees" means, collectively, the trustees, registrars and
transfer agents with respect to the Bond Collateral under the terms of
the Indentures and the other Bond Documents.
"UCC" means the Uniform Commercial Code from time to time in
effect in the State of North Carolina.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge and Grant of Security Interest. To secure the prompt payment
and performance in full when due, whether by lapse of time or otherwise, of the
Secured Obligations, the Pledgor hereby pledges and assigns to the Collateral
Agent, for the benefit of the Secured Parties, and grants to the Collateral
Agent, for the benefit of the Secured Parties, a continuing security interest
in, any and all right, title and interest of the Pledgor in and to the following
(collectively, the "Bond Collateral"):
(a) the Bonds set forth on Schedule 2(a) attached hereto
(collectively, the "Pledged Bonds");
(b) the Bond Documents; and
(c) all Proceeds of the Pledged Bonds, however and whenever
acquired and in whatever form, including, without limitation, all
payments of interest or principal on the Pledged Bonds.
3. Delivery of the Bond Collateral. The Pledgor hereby agrees that:
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(a) Delivery. The Pledgor shall deliver to the Collateral
Agent, as soon as practicable but in any event no later than March 31,
1999, all certificates and instruments representing the Pledged Bonds
and all Bond Documents. Prior to delivery to the Collateral Agent, all
such certificates and instruments constituting Bond Collateral shall be
held in trust by the Pledgor for the benefit of the Collateral Agent
pursuant hereto. Each such certificate shall be accompanied by a Bond
Pledge Certificate, duly executed in blank with guarantee of signature
acceptable to the respective Trustees, substantially in the form
provided in Exhibit 3(a) attached hereto. If, while this Bond Pledge
Agreement is in effect, the Pledgor shall receive any certificate or
debt instrument (including, without limitation, any certificate
representing an interest payment), option or rights, whether as an
addition to, in substitution of or in exchange for any Bond Collateral,
the Pledgor shall accept and hold the same in trust for the Collateral
Agent, for the benefit of the Secured Parties, and shall immediately
deliver the same to the Collateral Agent in the exact form received,
together with a Bond Pledge Certificate or other appropriate
assignment, duly executed in blank with guarantee of signature
acceptable to the respective Trustees, to be held by the Collateral
Agent, subject to the terms of this Bond Pledge Agreement, as
additional Bond Collateral.
(b) Financing Statements. The Pledgor shall execute and
deliver to the Collateral Agent such UCC or other applicable financing
statements as may be reasonably requested by the Collateral Agent in
order to perfect and protect the security interest created hereby in
the Bond Collateral.
4. Representations and Warranties. The Pledgor hereby represents and
warrants to the Collateral Agent, for the benefit of the Secured Parties, that
so long as any of the Secured Obligations remain outstanding or any Senior
Credit Document is in effect or any amounts remain outstanding under the Senior
Credit Documents or the Secured Parties have any obligations remaining under the
Senior Credit Documents:
(a) Authorization/Ownership of Bond Collateral. To the best of
its knowledge, the Pledged Bonds have been validly authorized and
issued by their respective Issuers. The Pledgor has purchased and fully
paid for the Pledged Bonds, has good and indefeasible title to the Bond
Collateral and will at all times be the legal and beneficial owner of
such Bond Collateral free and clear of any Lien, security interest or
rights of any other Person, other than Permitted Liens.
(b) No Conflicts. To its knowledge, the pledge and grant of
security interest in the Bond Collateral pursuant to Section 2, and the
exercise by the Collateral Agent of its rights and remedies hereunder,
(i) will not violate (A) any law or governmental regulation applicable
to the Pledgor or (B) any material contractual restriction, including,
without limitation, the terms of Article V of each of the Indentures or
the terms of the other Bond Documents, binding on or affecting the
Pledgor, its property or the Bond Collateral and (ii) will not result
in the creation or imposition of any Lien, charge or encumbrance on or
security interest in any of the assets of the Pledgor except as
contemplated by this Bond Pledge Agreement.
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(c) Pledgor's Authority. The Pledgor has full corporate power,
authority and legal right to pledge the Bond Collateral hereunder.
Except for authorizations, approvals or actions which have been
obtained, or notices or filings which have been made, and unless the
failure to obtain any such authorization, approval or action, or to
make any such notice or filing, would not have or be reasonably
expected to impair the validity of the pledges and grants of security
interests pursuant to Section 2, no authorization, approval or action
by, and no notice or filing with any Governmental Authority, any Issuer
of any Bond Collateral or any other Person is required either (i) for
the pledge made by the Pledgor or for the granting of the security
interest by the Pledgor pursuant to this Bond Pledge Agreement or (ii)
for the exercise by the Collateral Agent or the Secured Parties of
their rights and remedies hereunder (except as may be required by laws
affecting the offering and sale of securities pursuant to a public
sale, as more fully described in Section 8).
(d) Binding Agreement. This Bond Pledge Agreement has been
duly authorized, executed and delivered by the Pledgor and constitutes
a legal, valid and binding obligation of the Pledgor enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy or insolvency laws or by general principles of
equity;
(e) Security Interest/Priority/Recordation. This Bond Pledge
Agreement creates a valid security interest in favor of the Collateral
Agent, for the benefit of the Secured Parties, in the Bond Collateral.
The taking possession by the Collateral Agent of the certificates
representing the Pledged Bonds and all other certificates and
instruments constituting Bond Collateral will perfect and establish the
first priority of the Collateral Agent's security interest in the
Pledged Bonds and, when properly perfected by filing or otherwise, in
all other Bond Collateral represented by such Pledged Bonds and
instruments securing the Secured Obligations. A Bond Pledge Certificate
substantially in the form of Exhibit 3(a) attached hereto, when
properly executed and attached to the respective Bonds, is (i) a
writing sufficient under the terms of the respective Indentures to
permit the Trustees to record the pledge and grant of security interest
hereunder in their respective books and records relating to the Bond
Collateral; and (ii) a writing sufficient under the terms of the
respective Indentures to permit the Trustees, upon the occurrence of an
Event of Default, to record and effect the transfer of ownership of the
Pledged Bonds to the Collateral Agent. Except as set forth in this
Section 4(e), no action is necessary to perfect or otherwise protect
such security interest.
(f) No Other Shares. The Pledgor owns no other industrial
revenue or other bonds required to be pledged hereunder other than as
set forth on Schedule 2(a) attached hereto.
(g) Name; Chief Executive Office; Books and Records. The
Pledgor's legal name is as shown in this Bond Pledge Agreement and the
Pledgor has not, in the past four months, changed its name or been a
party to a merger, consolidation or other change in structure. The
Pledgor's chief executive office and chief place of business are (and
for the prior four months have been) located at the location(s) set
forth on Schedule 4(g) attached hereto, and the Pledgor keeps its books
and records at such locations. The name and
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location of each Trustee with respect to each of the Pledged Bonds are
set forth on Schedule 2(a) attached hereto, and, to the best knowledge
of the Pledgor, each such Trustee keeps its books and records relating
to the Bond Collateral at such location.
(h) Principal and Interest Payments. The outstanding principal
amount of each of the Pledged Bonds as of the date hereof is set forth
on Schedule 2(a) attached hereto. Payments of interest on each of the
Pledged Bonds are made annually on the dates and in the amounts set
forth on Schedule 2(a) attached hereto.
5. Covenants. The Pledgor hereby covenants that, so long as any of the
Secured Obligations remain outstanding or any Senior Credit Document is in
effect or any amounts remain outstanding under the Senior Credit Documents or
the Secured Parties have any obligations remaining under the Senior Credit
Documents, the Pledgor shall:
(a) Books and Records. Xxxx its books and records (and ensure
that the respective Trustees xxxx their books and records) to reflect
the security interest granted to the Collateral Agent, for the benefit
of the Secured Parties, pursuant to this Bond Pledge Agreement.
(b) Defense of Title. (i) Warrant and defend title to and
ownership of the Bond Collateral at its own expense against the claims
and demands of all other parties claiming an interest therein, keep the
Bond Collateral free from all Liens and security interests, except for
the security interest granted herein and Permitted Liens; (ii) not
sell, exchange, transfer, assign, lease or otherwise dispose of Bond
Collateral or any interest therein, except as permitted under the
respective Senior Credit Documents; and (iii) not enter into any
agreement or undertaking restricting the right or ability of the
Pledgor or the Collateral Agent to sell, assign or transfer any of the
Bond Collateral.
(c) Further Assurances. Promptly execute and deliver at its
expense all further instruments and documents and take all further
action that may be necessary and desirable or that the Collateral Agent
may reasonably request in order to (i) perfect and protect the security
interest in the Bond Collateral created hereby (including, without
limitation, any and all action necessary to satisfy the Collateral
Agent that the Collateral Agent has obtained a first priority perfected
security interest in any Bond Collateral); (ii) enable the Collateral
Agent to exercise and enforce its rights and remedies hereunder in
respect of the Bond Collateral; and (iii) otherwise effect the purposes
of this Bond Pledge Agreement.
(d) Compliance with Bond Documents. Maintain itself, and cause
each of its Subsidiaries to remain, in compliance with all terms of the
respective Bond Documents for each for the Bonds and with all other
material contractual restrictions relating to the Bond Collateral.
(e) Amendments. Not make or consent to any amendment or other
modification or waiver with respect to any of the Bond Documents or
other Bond Collateral or enter into any agreement for or allow to exist
any restriction with respect to any of the Bond Documents or other Bond
Collateral other than pursuant hereto or as may be permitted under the
Senior Credit Documents.
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(f) Compliance with Securities Laws. File all reports and
other information when and if required to be filed by the Pledgor with
the United States Securities and Exchange Commission and any other
state, federal or foreign agency in connection with the ownership of
the Bond Collateral or with the public sale thereof pursuant to Section
8.
(g) Change in Location. Not, without providing 30 days prior
written notice to the Collateral Agent and without filing such
amendments to any previously filed financing statements as the
Collateral Agent may require, (a) change the location of its chief
executive office and chief place of business (as well as its books and
records) from the locations set forth on Schedule 4(g) attached hereto
or (b) change its name or be party to a merger, consolidation or other
change in structure; provided, however, that subclause (b) hereof shall
not prevent consummation of the transactions permitted under the Fruit
of the Loom Agreement so long as (i) the Pledgor remains in compliance
with the provisions of subclause (a) above and (ii) in any such event,
notice to the Collateral Agent of any such name change or merger,
consolidation or other change in structure is given, and the filing of
any such amendments to previously filed financing statements occurs,
prior to such consummation.
(h) Opinion of Counsel. Upon the occurrence of an Event of
Default and during the continuation thereof, deliver to the Collateral
Agent such opinions of counsel, in form and substance acceptable to the
Collateral Agent, as are required by Section 5.4 of the respective
Indentures or by the other terms thereof to permit the Trustees to
record and effect the transfer of ownership of the Pledged Bonds to the
Collateral Agent.
6. Advances by Secured Parties. On failure of the Pledgor to perform
any of the covenants and agreements contained herein, and provided that either
(a) 10 Business Days have elapsed after notice of such failure was given by the
Collateral Agent to the Pledgor or (b) prompt action by the Collateral Agent is
necessary to protect the rights of the Secured Parties in the Bond Collateral,
the Collateral Agent may, at its sole option and in its sole discretion, perform
the same and in so doing may expend such sums as the Collateral Agent may
reasonably deem advisable in the performance thereof, including, without
limitation, the payment of any insurance premiums, the payment of any taxes, a
payment to obtain a release of a Lien or potential Lien, expenditures made in
defending against any adverse claim and all other expenditures which the
Collateral Agent or the Secured Parties may make for the protection of the
security hereof or which it or they may be compelled to make by operation of
law. All such sums and amounts so expended shall be repayable by the Pledgor
promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall bear interest from the date said
amounts are expended at the default rate specified in Section 3.1(b) of the
Fruit of the Loom Agreement for Revolving Loans that are Base Rate Loans. No
such performance of any covenant or agreement by the Collateral Agent or the
Secured Parties on behalf of the Pledgor, and no such advance or expenditure
therefor, shall relieve the Pledgor of any default under the terms of this Bond
Pledge Agreement or any Senior Credit Document. The Collateral Agent may make
any payment hereby authorized in accordance with any xxxx, statement or estimate
procured from the appropriate public office or holder of the claim to be
discharged without inquiry into the accuracy of such xxxx, statement or estimate
or into the validity of any tax assessment, sale, forfeiture, tax lien, title or
claim except to the extent such payment is being contested in good faith
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by the Pledgor in appropriate proceedings and against which adequate reserves
are being maintained in accordance with GAAP.
7. Events of Default.
The occurrence and continuation of an event which under any Senior
Credit Document would constitute an Event of Default shall be an Event of
Default hereunder (an "Event of Default").
8. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and during the continuation thereof, the Collateral Agent and
the Secured Parties shall have, in respect of the Bond Collateral, in
addition to the rights and remedies provided herein, in the Senior
Credit Documents, or by law, the rights and remedies of a secured party
under the UCC or any other applicable law.
(b) Sale of Bond Collateral. Upon the occurrence of an Event
of Default and during the continuation thereof, without limiting the
generality of the this Section, the Collateral Agent, without demand of
performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to
below) to or upon the Pledgor or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived),
may in such circumstances, and in its sole discretion, forthwith
request that the Trustees record and effect a transfer of ownership of
the Pledged Bonds to the Collateral Agent and collect, receive,
appropriate and realize upon the Pledged Bonds and the other Bond
Collateral, or any part thereof, and/or may forthwith sell, assign,
give an option or options to purchase or otherwise dispose of and
deliver the Bond Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or
sales, in the over-the-counter market, at any exchange, broker's board
or office of the Collateral Agent or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption
of any credit risk. The Collateral Agent or any Secured Party shall
have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to bid for the
purchase of the whole or any part of the Bond Collateral so sold, free
of any right or equity of redemption in the Pledgor, which right or
equity of redemption is hereby waived or released to extent permitted
by applicable law. The Pledgor agrees that, to the extent notice of
sale shall be required by law and has not been waived by the Pledgor,
any requirement of reasonable notice shall be met if notice, specifying
the place of any public sale or the time after which any private sale
is to be made, is personally served on or mailed, postage prepaid, to
the Pledgor, in accordance with the notice provisions of Section 16 at
least 10 Business Days before the time of such sale. The Collateral
Agent shall not be obligated to make any sale of Bond Collateral
regardless of notice of sale having been given. The Collateral Agent
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.
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(c) Registration Prior to Public Sale. Upon the written
request of the Collateral Agent prior to a public sale as contemplated
in subsection (b) above the Pledgor shall (i) use its best efforts, at
its own expense, to cause any registration, qualification or compliance
under any Federal or state securities laws, including, without
limitation, the Securities Act as then in effect (or other similar
Federal statute as then in effect) to be effected (and to be kept
effective) with respect to all or any part of the Bond Collateral as
would permit or facilitate the registration and sale of all or such
part of the Bond Collateral under such Federal or state laws, (ii)
provide to the Collateral Agent reports on the progress of such
registration, qualification or compliance, inform the Collateral Agent
immediately upon the completion thereof, and provide to the Collateral
Agent such number of prospectuses, offering circulars or other
documents incident thereto as the Collateral Agent may from time to
time request in order to effect such public sale of all or such part of
the Bond Collateral, and (iii) indemnify the Collateral Agent and any
other Person participating in such public sale of all or such part of
the Bond Collateral against all claims, losses, damages and liabilities
caused by any misstatement (or alleged misstatement) of a material fact
contained in any related registration statement, notification or the
like or omission of a material fact necessary to make the statements
therein not misleading, except insofar as the same may have been caused
by a misstatement or omission based upon information furnished in
writing to the Pledgor by the Collateral Agent expressly for use
therein. The Collateral Agent shall furnish to the Pledgor such
information regarding the Collateral Agent or the terms of this Bond
Pledge Agreement or the Senior Credit Documents as the Pledgor may
request in writing in connection with any such registration,
qualification or compliance.
(d) Private Sale. Upon the occurrence of an Event of Default
and during the continuation thereof, the Pledgor recognizes that the
Collateral Agent may deem it impracticable to effect a public sale of
all or any part of the Bond Collateral and that the Collateral Agent
may, therefore, determine to make one or more private sales of any such
Bond Collateral to a purchaser or restricted group of purchasers who
will be obligated to agree, among other things, to acquire such Bond
Collateral for their own account, for investment and not with a view to
the distribution or resale thereof. The Pledgor acknowledges that any
such private sale may be at prices and on terms less favorable to the
seller than the prices and other terms which might have been obtained
at a public sale and, notwithstanding the foregoing, agrees that such
private sale shall be deemed to have been made in a commercially
reasonable manner and that the Collateral Agent shall have no
obligation to sell such Bond Collateral at public sale notwithstanding
the fact that a registration for public sale has been obtained pursuant
to subsection (c) hereof or to delay any such sale for the period of
time necessary to permit the Pledgor to obtain such registration. The
Pledgor further acknowledges and agrees that any offer to sell such
Bond Collateral which has been (i) publicly advertised on a bona fide
basis in a newspaper or other publication of general circulation in the
financial community of New York, New York or Chicago, Illinois (to the
extent that such offer may be advertised without prior registration
under the Securities Act), or (ii) made privately in the manner
described above shall be deemed to involve a "public sale" under the
UCC, notwithstanding that such sale may not constitute a "public
offering" under the Securities Act, and the Collateral Agent may, in
such event, bid for the purchase of such Bond Collateral.
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(e) Retention of Bond Collateral. In addition to the rights
and remedies hereunder, upon the occurrence and during the continuance
of an Event of Default, the Collateral Agent may, after providing the
notices required by Section 9-505(2) of the UCC or otherwise complying
with the requirements of applicable law of the relevant jurisdiction,
retain all or any portion of the Bond Collateral in satisfaction of the
Secured Obligations. Unless and until the Collateral Agent shall have
provided such notices, however, the Collateral Agent shall not be
deemed to have retained any Bond Collateral in satisfaction of any
Secured Obligations for any reason.
(f) Deficiency. In the event that the proceeds of any sale,
collection or realization are insufficient to pay all amounts to which
the Collateral Agent or the Secured Parties are legally entitled, the
Pledgor shall be liable for the deficiency, together with interest
thereon at the default rate specified in Section 3.1(b) of the Fruit of
the Loom Agreement for Revolving Loans that are Base Rate Loans, the
costs of collection and the reasonable, documented fees of any
attorneys employed by the Collateral Agent to collect such deficiency.
Any surplus remaining after the full payment and satisfaction of the
Secured Obligations shall be returned to the Pledgor or to whomsoever a
court of competent jurisdiction shall determine to be entitled thereto.
9. Rights of the Collateral Agent.
(a) Power of Attorney. In addition to other powers of attorney
contained herein, the Pledgor hereby designates and appoints the
Collateral Agent, on behalf of the Secured Parties, and each of its
designees or agents as attorney-in-fact of the Pledgor, irrevocably and
with power of substitution, with authority to take any or all of the
following actions upon the occurrence and during the continuance of an
Event of Default:
(i) to demand, collect, settle, compromise,
adjust and give discharges and releases concerning the Bond
Collateral, all as the Collateral Agent may reasonably
determine;
(ii) to commence and prosecute any actions at
any court for the purposes of collecting any of the Bond
Collateral and enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Collateral Agent may deem reasonably
appropriate;
(iv) to pay or discharge taxes, liens, security
interests, or other encumbrances levied or placed on or
threatened against the Bond Collateral;
(v) to direct any parties liable for any
payment under any of the Bond Collateral to make payment of
any and all monies due and to become due thereunder directly
to the Collateral Agent or as the Collateral Agent shall
direct;
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(vi) to receive payment of and receipt for any
and all monies, claims, and other amounts due and to become
due at any time in respect of or arising out of any Bond
Collateral;
(vii) to sign and endorse any drafts,
assignments, bond pledge certificates, verifications, notices
and other documents relating to the Bond Collateral;
(viii) to settle, compromise or adjust any suit,
action or proceeding described above and, in connection
therewith, to give such discharges or releases as the
Collateral Agent may deem reasonably appropriate;
(ix) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, pledge agreements, affidavits, notices
and other agreements, instruments and documents that the
Collateral Agent may determine necessary in order to perfect
and maintain the security interests and liens granted in this
Bond Pledge Agreement and in order to fully consummate all of
the transactions contemplated therein;
(x) to exchange any of the Bond Collateral or
other property upon any reorganization or change in structure
of the Issuer thereof upon such terms as the Collateral Agent
may determine;
(xi) to sign an instrument in writing,
sanctioning the transfer of any or all of the Pledged Bonds of
the Pledgor into the name of the Collateral Agent or one or
more of the Secured Parties or into the name of any transferee
to whom the Pledged Bonds of the Pledgor or any part thereof
may be sold pursuant to Section 8; and
(xii) to do and perform all such other acts and
things as the Collateral Agent may reasonably deem to be
necessary, proper or convenient in connection with the Bond
Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable (i) for so long as any of the Secured Obligations remain
outstanding, any Senior Credit Document is in effect or any Loan or
Letter of Credit under any Bank Credit Document shall remain
outstanding and (ii) until all of the Commitments under all of the Bank
Credit Documents shall have been terminated. The Collateral Agent shall
be under no duty to exercise or withhold the exercise of any of the
rights, powers, privileges and options expressly or implicitly granted
to the Collateral Agent in this Bond Pledge Agreement, and shall not be
liable for any failure to do so or any delay in doing so. The
Collateral Agent shall not be liable for any act or omission or for any
error of judgment or any mistake of fact or law in its individual
capacity or its capacity as attorney-in-fact except acts or omissions
resulting from its gross negligence or willful misconduct. This power
of attorney is conferred on the Collateral Agent solely to protect,
preserve and realize upon its security interest in Bond Collateral.
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170
(b) Performance by the Collateral Agent of Pledgor's
Obligations. If the Pledgor fails to perform any agreement or
obligation contained herein and either (i) 10 Business Days have
elapsed after notice of such failure was given by the Collateral Agent
to the Pledgor or (ii) prompt action by the Collateral Agent is
necessary to protect the rights of the Secured Parties in the Bond
Collateral, the Collateral Agent itself may perform, or cause
performance of, such agreement or obligation, and the reasonable,
documented expenses of the Collateral Agent incurred in connection
therewith shall be payable by the Pledgor.
(c) Assignment by the Collateral Agent. The Collateral Agent
may from time to time, subject to the provisions of the respective
Senior Credit Documents, assign the Secured Obligations and any portion
thereof and/or the Bond Collateral and any portion thereof, and the
assignee shall be entitled to all of the rights and remedies of the
Collateral Agent under this Bond Pledge Agreement in relation thereto.
(d) The Collateral Agent's Duty of Care. Other than the
exercise of reasonable care to assure the safe custody of the Bond
Collateral while being held by the Collateral Agent hereunder, the
Collateral Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that the Pledgor
shall be responsible for preservation of all rights in the Bond
Collateral, and the Collateral Agent shall be relieved of all
responsibility for the Bond Collateral upon surrendering it or
tendering the surrender of it to the Pledgor. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Bond Collateral in its possession if such Bond
Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property, which shall be no less than
the treatment employed by a reasonable and prudent agent in the
industry, it being understood that the Collateral Agent shall not have
responsibility for (i) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters
relating to any Bond Collateral, whether or not the Collateral Agent
has or is deemed to have knowledge of such matters; or (ii) taking any
necessary steps to preserve rights against any parties with respect to
any Bond Collateral.
(e) Rights to Interest, Principal and Other Payments in
Respect of the Bond Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing, the Pledgor may receive and retain
any and all interest, principal or other payments in respect
of the Bond Collateral to the extent they are allowed under
the respective Senior Credit Documents.
(ii) Upon the occurrence and during the continuance
of an Event of Default:
(A) all rights of the Pledgor to receive
such interest, principal or other payments which it
would otherwise be authorized to receive and retain
pursuant to paragraph (i) of this Section shall cease
and all such rights shall thereupon be vested in the
Collateral Agent which shall then
12
171
have the sole right to receive and hold as Bond
Collateral such interest, principal or other
payments; and
(B) all interest, principal or other
payments which are received by the Pledgor contrary
to the provisions of paragraph (A) of this Section
shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other
property or funds of the Pledgor, and shall be
forthwith paid over to the Collateral Agent as Bond
Collateral in the exact form received, to be held by
the Collateral Agent as Bond Collateral and as
further collateral security for the Secured
Obligations.
(f) Release of Bond Collateral. The Collateral Agent may
release any of the Bond Collateral from this Bond Pledge Agreement or
may substitute any of the Bond Collateral for other Bond Collateral
without altering, varying or diminishing in any way the force, effect,
lien, pledge or security interest of this Bond Pledge Agreement as to
any Bond Collateral not expressly released or substituted, and this
Bond Pledge Agreement shall continue as a first priority lien on all
Bond Collateral not expressly released or substituted.
10. Rights of Collateral Agent and Required Lenders. Following the
occurrence and during the continuation of an Event of Default, the Collateral
Agent shall be entitled to enforce the rights of the Secured Parties hereunder
or shall take such action as requested in writing by the Required Lenders. In
the event the Collateral Agent refuses or fails to comply with written
instructions from the Required Lenders for a period of thirty days after such
written instructions shall have been received by the Collateral Agent, any
Secured Party shall (after having received written instructions from the
Required Lenders) have the right to carry out such written instructions on
behalf of the Secured Parties as a whole. No Secured Party (other than the
Collateral Agent) shall have any right in any manner whatsoever to enforce any
right under this Bond Pledge Agreement, except as herein provided.
11. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any payments in respect of the Secured
Obligations and any Proceeds of any of the Bond Collateral, when received by the
Collateral Agent or any of the Secured Parties in cash or its equivalent, will
be applied in reduction of the Secured Obligations as follows:
(a) FIRST, to the payment of all reasonable, documented
out-of-pocket costs and expenses (including without limitation
reasonable, documented attorneys' fees) of the Collateral Agent or a
Secured Party in connection with enforcing the rights of the Secured
Parties under the Senior Credit Documents and any protective advances
made by the Collateral Agent or a Secured Party, pro rata as set forth
below;
(b) SECOND, to the payment of all accrued fees and interest
payable to the Collateral Agent, the Secured Parties under the Senior
Credit Documents, pro rata as set forth below;
(c) THIRD, to the payment of the outstanding principal amount
of the Loans and unreimbursed drawings under Letters of Credit and to
the payment or cash collateralization of the outstanding LOC
Obligations under the Bank Credit Documents and
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172
the payment of all outstanding principal amounts under the Senior Note
Indentures, pro rata as set forth below;
(d) FOURTH, to any principal amounts outstanding under Hedging
Agreements, pro rata as set forth below;
(e) FIFTH, to all other obligations which shall have become
due and payable under the Senior Credit Documents and not repaid
pursuant to clauses "FIRST" through "FOURTH" above, pro rata as set
forth below; and
(f) SIXTH, to the payment of the surplus, if any, to whomever
may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Secured Parties shall receive an amount
equal to its pro rata share of amounts available to be applied above (based on
the proportion that the then outstanding obligations owed by the Pledgor to such
Secured Party under the Senior Credit Documents bears to the aggregate
outstanding obligations of the Pledgor to the Secured Parties under the Senior
Credit Documents); and (iii) to the extent that any amounts available for
distribution pursuant to clause "THIRD" above are attributable to the issued but
undrawn amount of outstanding Letters of Credit under any Bank Credit Document,
such amounts shall be held by the Collateral Agent in a cash collateral account
and applied (x) first, to reimburse the Issuing Lenders under each such Bank
Credit Document from time to time for any drawings under such Letters of Credit
and (y) then, following the expiration of all such Letters of Credit, without
duplication, to all other obligations of the types described in clauses "THIRD"
and "FIFTH" above. The Pledgor irrevocably waives the right to direct the
application of such payments and proceeds and acknowledges and agrees that the
Collateral Agent shall have the continuing and exclusive right to apply and
reapply any and all such payments and proceeds in the Collateral Agent's sole
discretion, notwithstanding any entry to the contrary upon any of its books and
records.
12. Costs of Counsel. At all times hereafter, the Pledgor agrees to
promptly pay upon demand any and all reasonable, documented costs and expenses
of the Collateral Agent or the Secured Parties as necessary to protect the Bond
Collateral or to exercise any rights or remedies under this Bond Pledge
Agreement or with respect to any Bond Collateral. All of the foregoing costs and
expenses shall constitute Secured Obligations hereunder.
13. Continuing Agreement.
(a) This Bond Pledge Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect so long as
any of the Secured Obligations remain outstanding or any Senior Credit
Document is in effect, and until all of the commitments thereunder
shall have terminated (other than any obligations with respect to the
indemnities and the representations and warranties set forth in the
Senior Credit Documents). Notwithstanding the foregoing, all releases
and indemnities provided hereunder shall survive termination of this
Bond Pledge Agreement, subject to the provisions of the respective
Senior Credit Documents.
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173
(b) This Bond Pledge Agreement shall continue to be effective
or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Collateral
Agent or any Secured Party as a preference, fraudulent conveyance or
otherwise under any bankruptcy, insolvency or similar law, all as
though such payment had not been made; provided that in the event
payment of all or any part of the Secured Obligations is rescinded or
must be restored or returned, all reasonable, documented costs and
expenses (including without limitation any reasonable, documented legal
fees and disbursements) incurred by the Collateral Agent or any Secured
Party in defending and enforcing such reinstatement shall be deemed to
be included as a part of the Secured Obligations.
14. Amendments; Waivers; Modifications. This Bond Pledge Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except by a written instrument executed by the Pledgor and the
Collateral Agent; provided that the Collateral Agent may only execute such
written instrument upon the consent of the Required Lenders (or the Fruit of the
Loom Lenders, as may be required by the terms of the Fruit of the Loom
Agreement).
15. Successors in Interest. This Bond Pledge Agreement shall create a
continuing security interest in the Bond Collateral and shall be binding upon
the Pledgor, its successors and assigns and shall inure, together with the
rights and remedies of the Collateral Agent and the Secured Parties hereunder,
to the benefit of the Collateral Agent and the Secured Parties and their
successors and permitted assigns; provided, however, that the Pledgor may not
assign its rights or delegate its duties hereunder without the prior written
consent of the Required Lenders (or the Fruit of the Loom Lenders as may be
required by the terms of the Fruit of the Loom Agreement). To the fullest extent
permitted by law, the Pledgor hereby releases the Collateral Agent and each
Secured Party, and its successors and assigns, from any liability for any act or
omission relating to this Bond Pledge Agreement or the Bond Collateral, except
for any liability arising from the gross negligence or willful misconduct of the
Collateral Agent, or such Secured Party, or its officers, employees or agents.
16. Notices. All notices required or permitted to be given under this
Bond Pledge Agreement shall be as follows:
to the Pledgor:
Union Underwear Company, Inc.
c/o Fruit of the Loom, Inc.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Sears Tower
Xxxxxxx, Xxxxxxxx 00000
Attn: Vice President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
15
174
with a copy to:
Union Underwear Company, Inc.
c/o Fruit of the Loom, Inc.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Sears Tower
Xxxxxxx, Xxxxxxxx 00000
Attn: Vice President and Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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175
to the
Collateral Agent:
NationsBank, N.A.
Agency Services
Xxxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
NationsBank, N.A.
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17. Counterparts. This Bond Pledge Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Bond Pledge Agreement to produce
or account for more than one such counterpart.
18. Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Bond Pledge Agreement.
19. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS BOND PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
Any legal action or proceeding with respect to this Bond Pledge
Agreement may be brought in the courts of the State of North Carolina,
or of the United States for the Western District of North Carolina,
and, by execution and delivery of this Bond Pledge Agreement, the
Pledgor hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of such
courts. The Pledgor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address for notices pursuant to
Section 16, such service to become effective 30 days after such
mailing. Nothing herein shall affect the right of the Collateral Agent
to serve process in any other
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176
manner permitted by law or to commence legal proceedings or to
otherwise proceed against the Pledgor in any other jurisdiction.
(b) The Pledgor hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Bond Pledge Agreement brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
20. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES TO THIS BOND PLEDGE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS BOND PLEDGE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
21. Severability. If any provision of this Bond Pledge Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
22. Entirety. This Bond Pledge Agreement and the Senior Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Senior Credit
Documents, or the transactions contemplated herein and therein.
23. Survival. Subject to the provisions of the respective Senior Credit
Documents, all representations and warranties of the Pledgor hereunder shall
survive the execution and delivery of this Bond Pledge Agreement and the Senior
Credit Documents, the delivery of the Notes and the making of the Loans and the
issuance of the Letters of Credit under the Fruit of the Loom Agreement, the
incurrence of obligations under the Xxxxxx Guaranty and the incurrence of
indebtedness under the Senior Note Indentures.
24. Other Security. To the extent that any of the Secured Obligations
are now or hereafter secured by property other than the Bond Collateral
(including, without limitation, real and other personal property owned by the
Pledgor), or by a guarantee, endorsement or property of any other Person, then
the Collateral Agent and the Secured Parties shall have the right to proceed
against such other property, guarantee or endorsement upon the occurrence and
during the continuation of any Event of Default, and the Collateral Agent and
the Secured Parties have the right, in their sole discretion, to determine which
rights, security, liens, security interests or remedies the Collateral Agent and
the Secured Parties shall at any time pursue, relinquish, subordinate, modify or
take with respect thereto, without in any way modifying or affecting any of them
or any of the Collateral Agent's and the Secured Parties' rights or the Secured
Obligations under this Bond Pledge Agreement, or under any of the Senior Credit
Documents.
25. Duties of Collateral Agent.
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177
(a) The Collateral Agent shall not have any duty or obligation
to manage, control, use, sell, dispose of or otherwise deal with the
Bond Collateral, or, to otherwise take or refrain from taking any
action under, or in connection with, this Bond Pledge Agreement,
except, as expressly provided by the terms and conditions of this Bond
Pledge Agreement. The Collateral Agent may take, but shall have no
obligation to take, any and all such actions under this Bond Pledge
Agreement or otherwise as it shall deem to be in the best interests of
the Secured Parties in order to maintain the Bond Collateral and
protect and preserve the Bond Collateral and the rights of the Secured
Parties.
(b) The Collateral Agent shall not be responsible in any
manner whatsoever for the correctness of any recitals, statements,
representations or warranties contained herein. The Collateral Agent
makes no representation as to the value or condition of the Bond
Collateral or any part thereof, as to the title of the Pledgor or any
of its Subsidiaries to the Bond Collateral, as to the security afforded
by this Bond Pledge Agreement or, as to the validity, execution,
enforceability, legality or sufficiency of this Bond Pledge Agreement,
and the Collateral Agent shall incur no liability or responsibility in
respect of any such matters. The Collateral Agent shall not be required
to ascertain or inquire as to the performance by the Pledgor or any of
its Subsidiaries of their respective Secured Obligations.
(c) The Collateral Agent shall not be responsible for insuring
the Bond Collateral, for the payment of taxes, charges, assessments or
liens upon the Bond Collateral or otherwise as to the maintenance of
the Bond Collateral. The Bond Collateral Agent shall have no duty to
the Pledgor or any of its Subsidiaries or to the Secured Parties as to
any Bond Collateral in its possession or control or in the possession
or control of any agent or nominee of the Collateral Agent or any
income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto, except the duty to
accord such of the Bond Collateral as may be in its possession
substantially the same care as it accords its own assets and the duty
to account for monies received by it.
(d) The Collateral Agent may execute any of the powers granted
under this Bond Pledge Agreement and perform any duty hereunder either
directly or by or through agents or attorneys-in-fact, and shall not be
responsible for the gross negligence or willful misconduct of any
agents or attorneys-in-fact selected by it with reasonable care and
without gross negligence or willful misconduct.
(e) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect notice or knowledge of the occurrence
of any Event of Default unless and until the Collateral Agent shall
have received a notice of Event of Default or a notice from the Pledgor
to the Collateral Agent in its capacity as Collateral Agent indicating
that an Event of Default has occurred. The Collateral Agent shall have
no obligation either prior to or after receiving such notice to inquire
whether an Event of Default has, in fact, occurred and shall be
entitled to rely conclusively, and shall be fully protected in so
relying, on any notice so furnished to it.
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178
26. Termination of Bond Pledge Agreement. Notwithstanding any provision
in this Bond Pledge Agreement to the contrary, in the event all of the Bank
Credit Documents and all obligations thereunder shall have terminated (other
than such obligations that by their terms are stated to survive termination of
the Bank Credit Documents) and no Loans, Letters of Credit or Commitments
thereunder shall remain outstanding, this Bond Pledge Agreement shall
immediately terminate and cease to be effective and the Pledgor shall be
released from all obligations hereunder (other than such obligations that by
their terms are stated to survive the termination of this Bond Pledge
Agreement).
[remainder of page intentionally left blank]
20
179
IN WITNESS WHEREOF, the Pledgor has caused a counterpart of this Bond
Pledge Agreement to be duly executed and delivered as of the date first above
written.
UNION UNDERWEAR COMPANY, INC.,
a New York corporation
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
180
Accepted and agreed to in Charlotte, North Carolina as of the date
first above written.
NATIONSBANK, N.A., as Collateral Agent
By:
------------------------------------
Name:
-- -------------------------------
Title:
---------------------------------
181
Schedule 2(a)
to
Bond Pledge Agreement
dated as of March 10, 1999
in favor of NationsBank, N.A.
as Collateral Agent
Bonds
-----
1. EQUIPMENT REVENUE BOND, SERIES 1989-UU
ISSUER: Industrial Development Board, City of Fayette, AL
ISSUE DATE: December 1, 1989
EXPIRATION DATE: December 1, 1999
ORIGINAL PRINCIPAL AMOUNT: $22,000,000
OUTSTANDING PRINCIPAL AMOUNT: $22,000,000
INTEREST RATE: 9.5%
INTEREST PAYMENT DATE(S): June 1 and December 1
TRUSTEE: SouthTrust Bank of Alabama, National Association
TRUSTEE ADDRESS: 000 Xxxxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, VP, Corporate Trust Dept.
LESSOR/ASSET LOCATION: Fayette Cotton Mill, Inc.
2. INDUSTRIAL REVENUE BONDS, SERIES 1990-UU, NUMBER R-1
ISSUER: Industrial Development Board, Cherokee County, AL
ISSUE DATE: May 1, 1990
EXPIRATION DATE: May 1, 2005
ORIGINAL PRINCIPAL AMOUNT: $11,000,000
OUTSTANDING PRINCIPAL AMOUNT: $11,000,000
INTEREST RATE: Base Rate (as defined in Indenture) + 1%
INTEREST PAYMENT DATE(S): May 1 and November 1
TRUSTEE: SouthTrust Bank of Alabama, National Association
TRUSTEE ADDRESS: 000 Xxxxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, VP, Corporate Trust Dept
LESSOR/ASSET LOCATION: Leesburg Knitting Xxxxx, Inc.
182
3. INDUSTRIAL REVENUE BONDS, SERIES 1990-UU-A, NUMBER R-1
ISSUER: City of Winfield, AL
ISSUE DATE: June 1, 1990
EXPIRATION DATE: June 1, 2005
ORIGINAL PRINCIPAL AMOUNT: $18,300,000
OUTSTANDING PRINCIPAL AMOUNT: $18,300,000
INTEREST RATE: Base Rate (as defined in Indenture) + 1%
(8.75% as of 03/10/99)
INTEREST PAYMENT DATE(S): June 1 and December 1
TRUSTEE: SouthTrust Bank of Alabama, National Association
TRUSTEE ADDRESS: 000 Xxxxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, VP, Corporate Trust Dept
LESSOR/ASSET LOCATION: Xxxxxxxx Xxxxxx Mill, Inc.
4. INDUSTRIAL REVENUE BONDS, SERIES 1990-UU-B, NUMBER R-1
ISSUER: City of Winfield, AL
ISSUE DATE: June 15, 1990
EXPIRATION DATE: June 1, 2005
ORIGINAL PRINCIPAL AMOUNT: $9,700,000
OUTSTANDING PRINCIPAL AMOUNT: $9,700,000
INTEREST RATE: Base Rate (as defined in Indenture) + 1%
INTEREST PAYMENT DATE(S): June 1 and December 1
TRUSTEE: SouthTrust Bank of Alabama, National Association
TRUSTEE ADDRESS: 000 Xxxxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, VP, Corporate Trust Dept
LESSOR/ASSET LOCATION: Xxxxxxxx Xxxxxx Mill, Inc.
5. INDUSTRIAL REVENUE BONDS, SERIES 1991-UU, NUMBER R-1
ISSUER: Industrial Development Board, City of Aliceville, AL
ISSUE DATE: March 22, 1991
EXPIRATION DATE: February 1, 2006
ORIGINAL PRINCIPAL AMOUNT: $31,000,000
OUTSTANDING PRINCIPAL AMOUNT: $31,000,000
INTEREST RATE: Base Rate (as defined in Indenture) + 1%
INTEREST PAYMENT DATE(S): February 1 and August 1
TRUSTEE: SouthTrust Bank of Alabama, National Association
TRUSTEE ADDRESS: 000 Xxxxxx Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, VP, Corporate Trust Dept
LESSOR/ASSET LOCATION: Aliceville Cotton Mill, Inc.
183
Schedule 4(g)
to
Bond Pledge Agreement
dated as of March 10, 1999
in favor of NationsBank, N.A.
as Collateral Agent
Chief Executive Office
(1) Union Underwear Company, Inc.
c/o Fruit of the Loom, Inc.
One Fruit of the Xxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
(2) Union Underwear Company, Inc.
c/o Fruit of the Loom, Inc.
000 X. Xxxxxx Xxxxx
Xxxxx 0000, Xxxxx Xxxxx
Xxxxxxx, XX 00000
184
Exhibit 3(a) to
Bond Pledge Agreement
BOND PLEDGE CERTIFICATE
This Certificate is delivered pursuant to Section 3(a) of the Bond
Pledge Agreement dated as of March ____, 1999 (as may be amended from time to
time, the "Bond Pledge Agreement") made by Union Underwear Company, Inc. (the
"Pledgor") in favor of NationsBank, N.A. in its capacity as Collateral Agent
(the "Collateral Agent") for the Secured Parties. Capitalized terms used herein
and not otherwise defined shall have the meanings given to such terms in the
Bond Pledge Agreement.
As security for the prompt and complete payment and performance when
due of all Secured Obligations and the performance by the Pledgor of all of the
covenants and obligations to be performed by it pursuant to the Senior Credit
Documents, the Bond Pledge Agreement and any other documents relating to the
Secured Obligations, the Pledgor hereby pledges, hypothecates, assigns and
transfers to the Collateral Agent, hereby delivers to the Collateral Agent, and
hereby grants to the Collateral Agent, a valid and continuing first priority
lien on, and security interest in, all of the Pledgor's right, title and
interest in, to and under the following (the "Bond"):
[Describe Bond]
and all additions thereto, substitutions therefor and replacements and proceeds
thereof.
The Pledgor is delivering to the Collateral Agent the original Bond
together with this Bond Pledge Certificate duly executed in blank.
The Bond shall constitute a "Bond" under the Bond Pledge Agreement and
has been duly pledged thereunder.
Union Underwear Company, Inc.
Dated:
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Signature Guaranteed:
[Bank, Trust Company or Firm]
By:
-------------------------
Name:
-----------------------
Title:
----------------------