EXHIBIT 99.1
EXECUTION VERSION
SECOND AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND
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FIRST AMENDMENT TO SECURITY AGREEMENT
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This SECOND AMENDMENT TO POST-PETITION CREDIT AGREEMENT AND FIRST
AMENDMENT TO SECURITY AGREEMENT, dated as of September 25, 2003 (this
"Amendment"), is made among WESTPOINT XXXXXXX INC., a Delaware corporation and
Chapter 11 debtor-in-possession ("WPS"), WESTPOINT XXXXXXX INC. I, a Delaware
corporation and Chapter 11 debtor-in-possession ("WPSI"), X. X. XXXXXXX & CO.,
INC., a Delaware corporation and Chapter 11 debtor-in-possession ("JPS"), X. X.
XXXXXXX ENTERPRISES, INC., a Delaware corporation and Chapter 11
debtor-in-possession ("JPSE"), and WESTPOINT XXXXXXX STORES INC., a Georgia
corporation and Chapter 11 debtor-in-possession ("WPSS") (WPS, WPSI, JPS, JPSE
and WPSS each is referred to hereinafter as a "Borrower" and collectively as the
"Borrowers"), the financial institutions from time to time parties to the Credit
Agreement (as hereinafter defined) (such financial institutions, together with
their respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders"), BANK OF AMERICA,
N.A., in its capacity as administrative and collateral agent for the Lenders
(together with its successors in such capacity, the "Administrative Agent"), and
WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as syndication agent for
the Lenders (in such capacity, the "Syndication Agent" and collectively with
Administrative Agent, the "Agents").
RECITALS:
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Borrowers, Lenders and Agents are parties to a certain Post-Petition
Credit Agreement dated as of June 2, 2003, as amended by a First Amendment to
Post-Petition Credit Agreement dated as of June 26, 2003 (as so amended, the
"Credit Agreement"), pursuant to which Lenders have made certain revolving
credit loans to and issued various letters of credit for Borrowers.
Borrowers and Administrative Agent are parties to a certain Security
Agreement dated as of June 2, 2003 (the "Security Agreement"), pursuant to which
Borrowers have granted to Administrative Agent, for its benefit and the benefit
of Lenders, a continuing Lien upon the Collateral, as security for the
Obligations.
The parties desire to amend the Credit Agreement and the Security
Agreement in certain respects as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended by:
(a) deleting clause (a) of the definition of "Change of Control"
appearing in Annex A to the Credit Agreement and by substituting in lieu thereof
the following new clause (a):
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act becomes after the Petition Date a
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the Voting
Stock of WPS ) (except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the
right to acquire, whether such right is exercisable immediately or
only after the passage of time);
(b) amending the definition of "Eligible Accounts" appearing in Annex
A to the Credit Agreement by deleting clause (t) thereof in its entirety and by
substituting in lieu thereof the following new clause (t):
(t) which is not subject to a first priority and perfected
security interest in favor of the Administrative Agent, for the
benefit of the Administrative Agent and the Lenders, or which is
subject to any other Lien except those in favor of the Pre-Petition
Agents.
(c) deleting in its entirety the definition of "Foreign Subsidiary
Advances" appearing in Annex A to the Credit Agreement and by substituting in
lieu thereof the following new definition:
"Foreign Subsidiary Advances" means loans, advances or other
extensions of credit by a Borrower to or for the benefit of a Foreign
Subsidiary, including (i) the procuring of a Letter of Credit for the
account of such Borrower to support or secure indebtedness of a
Foreign Subsidiary or to otherwise benefit a Foreign Subsidiary (the
original face amount of any such Letter of Credit being the amount of
the Foreign Subsidiary Advance attributable thereto) and (ii) all
amounts paid under any Guaranty from such Borrower with respect to
indebtedness (including indebtedness owing to trade creditors) of a
Foreign Subsidiary, but expressly excluding any payment by such
Borrower after the Petition Date of interest on Pre-Petition Debt for
which such Borrower and a Foreign Subsidiary are jointly and severally
liable.
(d) deleting the definition of "Software" appearing in Annex A to the
Credit Agreement.
(e) deleting the reference to "Borrower" appearing in each of Section
1.2(i)(A), Section 3.4(a) and clause (h) of the Section captioned "Interpretive
Provisions" appearing in Annex A to the Credit Agreement and by substituting in
lieu thereof a reference to "Borrowers."
(f) deleting the reference to "Section 8.2" appearing in Section 3.1
and by substituting in lieu thereof a reference to "Article 8".
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(g) amending clause (p) of Section 5.3 by inserting immediately
before the word "termination" appearing therein, the phrase "notice of."
(h) amending Section 6.8 by inserting immediately following the
defined term "Real Estate" appearing in clause (ii) thereof, the phrase "in
favor of any Person".
(i) amending Section 6.17 by deleting the phrase "Neither the
Borrower" appearing therein and by substituting in lieu thereof the phrase
"Neither any Borrower."
(j) deleting the references to "Borrower" and "Borrower's" appearing
in the last two sentences of Section 7.7 and by substituting in lieu thereof,
respectively, references to "Borrowers" and "Borrowers'".
(k) amending Section 12.8 by deleting the phrase "The Bank of
America" the two times it appears therein and by substituting therefore the
phrase "Bank of America."
(l) amending Section 13.11 by deleting the phrase "such Person" the
two times it appears therein and by substituting the phrase "such Indemnified
Person" in lieu thereof.
(m) amending Exhibit E to the Credit Agreement by inserting the word
"No" immediately before the phrase "Default or Event of Default" appearing
therein and by amending each of the Exhibits to the Credit Agreement by deleting
the phrase "Credit Agreement dated as of June 2, 2003" wherever it appears
therein and by substituting therefor the phrase "Post-Petition Credit Agreement
dated as of June 2, 2003."
3. AMENDMENTS TO SECURITY AGREEMENT. Section 11 of the Security
Agreement is hereby amended:
(a) by redesignating the subsections set forth therein, in the order
in which they appear, as subsections (a), (b), (c), (d), (e) and (f),
respectively;
(b) by deleting the second proviso appearing in subsection (b)
thereof; and
(c) by deleting the reference to "Section 9" appearing in the new
redesignated subsection (f) thereof and by substituting in lieu thereof a
reference to "Section 11."
4. TEMPORARY SUSPENSION OF EBITDA COVENANT. Notwithstanding anything
in the Credit Agreement or any other DIP Financing Document to the contrary, the
Administrative Agent and the Lenders hereby agree that the EBITDA covenant set
forth in Section 7.23 of the Credit Agreement shall be suspended (i.e., it shall
not be tested) during the period commencing on the date hereof and ending on the
earliest of (i) the entry by the Court of an order approving the terms of the
Third Amendment to Post-Petition Credit Agreement dated as of September 25,
2003, among the Borrowers, the Lenders and the Administrative Agent, which Third
Amendment provides for, among other things, an amendment of the EBITDA covenant
set forth in Section 7.23 of the Credit Agreement, (ii) October 31, 2003, and
(iii) the first date after the date hereof on which Availability is less than
$75,000,000 (such period, the "Suspension Period"). After the Suspension Period,
the EBITDA covenant shall cease to be suspended and shall be tested strictly in
accordance with the provisions of Section 7.23 of the Credit Agreement,
including, without limitation, for any test period ending during the Suspension
Period.
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5. RATIFICATION AND REAFFIRMATION. Borrowers hereby ratify and
reaffirm the Obligations, each of the DIP Financing Documents and all of
Borrowers' covenants, duties, indebtedness and liabilities under the DIP
Financing Documents.
6. REPRESENTATIONS AND WARRANTIES. Borrowers represent and warrant to
Agents and Lenders, to induce Agents and Lenders to enter into this Amendment,
that the execution, delivery and performance of this Amendment have been duly
authorized by all requisite corporate action on the part of Borrowers and this
Amendment has been duly executed and delivered by Borrowers; and all of the
representations and warranties made by Borrowers in the Credit Agreement are
true and correct on and as of the date hereof.
7. EFFECTIVENESS. This Amendment shall become effective upon receipt
by the Administrative Agent of at least 12 original counterparts of this
Amendment, in form and substance satisfactory to the Administrative Agent and
the Majority Lenders, duly executed and delivered by the Borrowers, the Majority
Lenders and the Administrative Agent.
8. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of New York.
9. NO COURT APPROVAL. The parties do not believe that Court approval
of all or any part of this Amendment is required by the terms of the Final
Financing Order.
10. NO NOVATION, ETC. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Credit Agreement or any of the other DIP Financing Documents, each of which
shall remain in full force and effect. This Amendment is not intended to be, nor
shall it be construed to create, a novation or accord and satisfaction.
11. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
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IN WITNESS WHEREOF, the parties have entered into this Amendment on
the date first above written.
BORROWERS:
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WESTPOINT XXXXXXX INC.,
a Delaware corporation
By:_________________________________
Name:____________________________
Title:___________________________
WESTPOINT XXXXXXX INC. I,
a Delaware corporation
By:_________________________________
Name:____________________________
Title:___________________________
X.X. XXXXXXX & CO., INC.,
a Delaware corporation
By:_________________________________
Name:____________________________
Title:___________________________
X.X. XXXXXXX ENTERPRISES, INC.,
a Delaware corporation
By:_________________________________
Name:____________________________
Title:___________________________
WESTPOINT XXXXXXX STORES INC.,
a Georgia corporation
By:_________________________________
Name:____________________________
Title:___________________________
AGENTS:
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BANK OF AMERICA, N.A.,
as Administrative Agent
By:_________________________________
Name:____________________________
Title:___________________________
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
By:_________________________________
Name:____________________________
Title:___________________________
LENDERS:
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BANK OF AMERICA, N.A.
By:_________________________________
Name:____________________________
Title:___________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:____________________________
Title:___________________________
WHITEHALL BUSINESS CREDIT CORPORATION
By:__________________________________
Name:_____________________________
Title:____________________________
PNC BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:____________________________
Title:___________________________
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By:_________________________________
Name:____________________________
Title:___________________________
XXXXX FARGO FOOTHILL, LLC
By:_________________________________
Name:____________________________
Title:___________________________
ORIX FINANCIAL SERVICES, INC.
By:_________________________________
Name:____________________________
Title:___________________________
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By:_______________________________________
Name:__________________________________
Title:_________________________________
AMSOUTH BANK
By:_______________________________
Name:________________________
Title:_______________________
FLEET CAPITAL CORPORATION
By:_________________________________
Name:__________________________
Title:_________________________
