Exhibit 10.8
FIRST AMENDMENT TO
TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT (this "Amendment"), dated
to be effective as of June 28, 2002, is entered into among PILLOWTEX
CORPORATION, a Delaware corporation (the "Borrower"), the institutions listed on
the signature pages hereof that are parties to the Loan Agreement defined below
(collectively, the "Lenders"), and BANK OF AMERICA, N.A., as Administrative
Agent for itself and the Lenders (in said capacity, the "Administrative Agent").
BACKGROUND
A. The Borrower, the Lenders and the Administrative Agent are parties
to that certain Term Loan Agreement, dated as of May 24, 2002 (as amended
through the date hereof, the "Loan Agreement"). Terms defined in the Loan
Agreement and not otherwise defined herein shall be used herein as defined in
the Loan Agreement.
B. The Borrower, the Lenders and the Administrative Agent desire to
make certain amendments to the Loan Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders and the Administrative Agent covenant and agree as follows:
1. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended
as follows:
(a) A new Section 8.1(p) is added immediately following Section
8.1(o), as follows:
(p) As soon as practical, but in any event not later than 45
days after the end of each quarterly period of each fiscal year of
the Borrower, a report detailing the outstanding amount of loans
and advances to directors, officers and employees of the Borrower
and its Subsidiaries as of the end of such fiscal quarter,
including the names of each recipient of such loans or advances and
the amount outstanding under each such loan or advance, the stated
or implied interest rate and maturity date associated with each
advance, and a description of any amendments to the terms of any
previous advance or commitments to make future advances.
(b) Section 9.5(e) is amended and restated in its entirety, as
follows:
(e) Loans or advances to directors, officers and
employees of the Borrower or any of its Subsidiaries that do
not exceed $1,500,000 in aggregate amount outstanding at any
time;
(c) Schedule 1.1 is hereby amended in the form of, and all
references in the Loan Agreement to Schedule 1.1 are hereby deemed to
be references to, Schedule 1.1 attached to this Amendment.
2. REPRESENTATIONS AND WARRANTIES. By its execution and delivery
hereof, the Borrower represents and warrants to the Lenders that, as of the date
hereof:
(a) the representations and warranties contained in the Loan
Agreement and the other Loan Documents are true and correct on and as
of the date hereof as if made on and as of such date;
(b) no event has occurred and is continuing which constitutes an
Event of Default;
(c) the Borrower has legal power and authority to execute and
deliver this Amendment, and this Amendment constitutes the legal, valid
and binding obligation of the Borrower, enforceable in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy or other debtor relief laws and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and except as rights to indemnity may be limited by
federal or state securities laws;
(d) neither the execution, delivery and performance of this
Amendment nor the consummation of any transactions contemplated herein
will violate or conflict with, or result in a breach of, or constitute
a default under, or require any consent under (i) the articles of
incorporation, bylaws or other organizational documents of the
Borrower, (ii) any applicable law, rule, or regulation or any order,
writ, injunction, or decree of any Governmental Authority or
arbitrator, or (iii) any agreement or instrument to which the Borrower
is a party or by which it or any of its property is bound or subject;
and
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any Governmental Authority or other Person
(including the Board of Directors of any Borrower), is required for the
execution, delivery or performance by the Borrower of this Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall be effective only
after each of the following conditions precedent shall have been satisfied:
(a) the Administrative Agent shall receive counterparts of this
Amendment executed by the Lenders and the Borrower;
(b) the representations and warranties set forth in Section 2 of this
Amendment shall be true and correct; and
(c) the Administrative Agent shall receive, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall reasonably
require.
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4. REFERENCE TO LOAN AGREEMENT. Upon the effectiveness of this
Amendment, each reference in the Loan Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the Loan
Agreement, as affected and amended by this Amendment.
5. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Amendment may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Amendment may be validly executed and delivered by facsimile or other electronic
transmission.
6. GOVERNING LAW: BINDING EFFECT. This Amendment shall be governed by
and construed in accordance with the laws of the State of Texas and shall be
binding upon the Borrower, the Administrative Agent, each Lender and their
respective successors and assigns.
7. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to
all provisions of the Loan Agreement applicable to Loan Documents, all of which
are incorporated in this Amendment by reference the same as if set forth in this
Amendment verbatim.
9. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
Remainder of page intentionally blank.
Signature pages follow.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
PILLOWTEX CORPORATION
By: _____________________________________
Name:________________________________
Title:_______________________________
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent and a Lender
By: _____________________________________
William E. Livingstone, IV
Managing Director
First Amendment to Term Loan Agreement
Signature Page
LENDERS
BANC OF AMERICA STRATEGIC SOLUTIONS,
INC.
By:___________________________________
William E. Livingstone, IV
Managing Director
WELLS FARGO BANK TEXAS, NATIONAL
ASSOCIATION
By:___________________________________
Name:______________________________
Title:_____________________________
FLEET NATIONAL BANK
By:___________________________________
Name:______________________________
Title:_____________________________
COMERICA BANK
By:___________________________________
Name:______________________________
Title:_____________________________
First Amendment to Term Loan Agreement
Signature Page
CREDIT LYONNAIS - NEW YORK BRANCH
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
CREDIT INDUSTRIEL ET COMMERCIAL
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
BANK POLSKA KASA OPIEKI, S.A., NEW
YORK BRANCH
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
GENERAL ELECTRIC CAPITAL
CORPORATION
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
First Amendment to Term Loan Agreement
Signature Page
SOCIETE GENERALE, SOUTHWEST AGENCY
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
VAN KAMPEN CLO I, LIMITED
By: VAN KAMPEN MANAGEMENT, INC.,
as Collateral Manager
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
VAN KAMPEN CLO II, LIMITED
By: Van Kampen Management, Inc.,
as Collateral Manager
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
First Amendment to Term Loan Agreement
Signature Page
BALANCED HIGH-YIELD FUND I LTD.
By: ING CAPITAL ADVISORS, LLC,
as Asset Manager
By: ___________________________________________________
Name:______________________________________________
Title:_____________________________________________
By: ___________________________________________________
Name:______________________________________________
Title:_____________________________________________
BALANCED HIGH-YIELD FUND II LTD.
By: ING CAPITAL ADVISORS, LLC,
as Asset Manager
By: ___________________________________________________
Name:______________________________________________
Title:_____________________________________________
By: ___________________________________________________
Name:______________________________________________
Title:_____________________________________________
KZH CYPRESSTREE-1 LLC
By: ___________________________________________________
Name:______________________________________________
Title:_____________________________________________
First Amendment to Term Loan Agreement
Signature Page
THE DAI-ICHI KANGYO BANK
LIMITED, NEW YORK BRANCH
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
MARINER LDC
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
LEHMAN COMMERCIAL PAPER, INC.
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
PRESIDENT & FELLOWS OF HARVARD
COLLEGE
By: Regiment Capital Management, LLC,
as its Investment Advisor
By: Regiment Capital Advisors, LLC,
its Manager and pursuant to delegated
authority
By:_____________________________________
Name:___________________________________
Title:__________________________________
First Amendment to Term Loan Agreement
Signature Page
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC
Collateral Manager to ARK CLO 2000-1, Limited
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
FRANKLIN FLOATING RATE TRUST
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
UBS AG, STAMFORD BRANCH, successor to
Union Bank of Switzerland, New York Branch
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
WILLIAM E. SIMONS & SONS SPECIAL
SITUATION PARTNERS, L.P.
By: __________________________________________________
Name:_____________________________________________
Title:____________________________________________
First Amendment to Term Loan Agreement
Signature Page
OCM ADMINISTRATIVE SERVICES II, L.L.C.
By: Oaktree Capital Management, LLC, Its
Manager
By: ______________________________________
Name:_________________________________
Title:________________________________
By: ______________________________________
Name:_________________________________
Title:________________________________
PW WILLOW LLC, by Bond Street Capital, LLC,
as agent
By: ______________________________________
Name:_________________________________
Title:________________________________
BANKERS TRUST COMPANY
By: ______________________________________
Name:_________________________________
Title:________________________________
B III CAPITAL PARTNERS, LP
By: ______________________________________
Name:_________________________________
Title:________________________________
First Amendment to Term Loan Agreement
Signature Page
B III-A CAPITAL PARTNERS, L.P.
By: ____________________________________
Name:_______________________________
Title:______________________________
CONTINENTAL CASUALTY COMPANY
By ____________________________________
Name:_______________________________
Title:______________________________
CREDIT SUISSE FIRST BOSTON
By: ____________________________________
Name:_______________________________
Title:______________________________
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISOR HIGH YIELD FUND
By: ____________________________________
Name:_______________________________
Title:______________________________
First Amendment to Term Loan Agreement
Signature Page
FIDELITY ADVISOR SERIES II: Fidelity Advisor
Floating Rate High Income Fund
By: __________________________________________
Name:_____________________________________
Title:____________________________________
FIDELITY FIXED INCOME TRUST
By: __________________________________________
Name:_____________________________________
Title:____________________________________
SATELLITE SENIOR INCOME FUND, LLC
By: __________________________________________
Name:_____________________________________
Title:____________________________________
T. ROWE PRICE RECOVERY FUND II, L.P.
By: __________________________________________
Name:_____________________________________
Title:____________________________________
First Amendment to Term Loan Agreement
Signature Page
CANPARTNERS INVESTMENTS IV LLC
By: Canpartners Incorporate, Inc.,
a California corporation, its
Managing Member
By:__________________________________________
Name:____________________________________
Title:___________________________________
QDRP MASTER LTD
By:__________________________________________
Name:____________________________________
Title:___________________________________
CONTRARIAN FUNDS, LLC
By: Contrarian Capital Management, LLC as Manager
By:__________________________________________
Name:________________________________________
Title:_______________________________________
REGIMENT CAPITAL LTD.
By: Regiment Capital Management, LLC, as its
Investment Advisor
By: Regiment Capital Advisors, LLC,
its Manager and pursuant to delegated
authority
By:___________________________________
Timothy Peterson
President
First Amendment to Term Loan Agreement
Signature Page
Each of the undersigned hereby (a) consents and agrees to this
Amendment's execution and delivery, (b) ratifies and confirms its obligations
under its guaranty, (c) acknowledges and agrees that its obligations under its
guaranty are not released, diminished, impaired, reduced, or otherwise adversely
affected by this Amendment, and (d) acknowledges and agrees that it has no
claims or offsets against, or defenses or counterclaims to, its guaranty
GUARANTORS:
PTEX, INC.
PILLOWTEX MANAGEMENT SERVICES COMPANY
BEACON MANUFACTURING COMPANY
FC ONLINE, INC.
TENNESSEE WOOLEN MILLS, INC.
FIELDCREST CANNON, INC.
ENCEE, INC.
FCC CANADA, INC.
FIELDCREST CANNON LICENSING, INC.
FCI CORPORATE LLC
FIELDCREST CANNON TRANSPORTATION, INC.
FCI OPERATIONS LLC
THE LESHNER CORPORATION
OPELIKA INDUSTRIES, INC.
PILLOWTEX CANADA INC.
By: _________________________________
Name: _________________________________
Title: _________________________________
PTEX HOLDING COMPANY
FIELDCREST CANNON FINANCING, INC
By: _________________________________
Name: _________________________________
Title: _________________________________
First Amendment to Term Loan Agreement
Signature Page