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EXHIBIT 10.6
INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND LIEN SUBORDINATION AGREEMENT, dated as of June
29, 2001 (as amended, supplemented or otherwise modified from time to time, this
"Agreement"), is by and among:
WESTPOINT XXXXXXX INC., a Delaware corporation ("WPS"), and each of its
direct and indirect subsidiaries (the "Subsidiaries") identified on the
signature pages of this Agreement (collectively with WPS, the "Borrower");
BANK OF AMERICA, N.A., a national banking association, not in its
individual capacity but as the collateral trustee (the "Senior Collateral
Trustee") under the terms of that certain Second Amended and Restated Collateral
Trust Agreement, dated as of June 9, 1998, among inter alia the Borrower and the
Senior Collateral Trustee (as amended, the "Senior Collateral Trust Agreement");
and
BANKERS TRUST COMPANY, a New York corporation, not in its individual
capacity but as the administrative agent (the "Second Lien Administrative
Agent") under the terms of that certain Collateral Security Agreement, of even
date herewith (the "Second Lien Collateral Security Agreement").
WITNESSETH:
WHEREAS, the Borrower has previously obtained an $800,000,000 revolving
credit facility (the "Senior Loans") pursuant to the terms and conditions of
that certain Second Amended and Restated Credit Agreement (as amended, modified,
and supplemented from time to time, the "Senior Credit Agreement"), dated as of
June 9, 1998, among WPS, WestPoint Xxxxxxx (UK) Limited and WestPoint Xxxxxxx
(Europe) Limited, the lenders identified therein (including their respective
successors and assigns, the "Senior Lenders"), and Bank of America, N.A. as
administrative agent (the "Senior Agent");
WHEREAS, each of the Subsidiaries is either a co-borrower under the
Senior Credit Agreement or a guarantor of the Senior Loans pursuant to guarantee
agreements executed in connection with the Senior Credit Agreement;
WHEREAS, the obligations of the Borrower under the Senior Credit
Agreement are secured, pursuant to the terms of the Senior Collateral Trust
Agreement, various mortgages, deeds of trust, deeds to secure debt, pledge
agreements and other collateral documents executed by the Borrower in favor of
the Senior Collateral Trustee for the benefit of the Senior Lenders
(collectively, as the same may be amended, supplemented, modified or replaced
from time to time, the "Senior Collateral Documents"), by first liens on and
security interests in, inter alia, (a) all or substantially all of the real
property, plant, and improvements owned by the Borrower, including without
limitation all material manufacturing facilities owned by the Borrower
(collectively, the "Real Property Collateral"); (b) all or substantially all of
the personal property, now owned or hereafter acquired by the Borrower,
including without limitation cash, securities, inventory, accounts (other than
accounts sold by the Borrower pursuant to permitted receivable securitization
facilities), equipment, goods, documents, and instruments, all as more
specifically
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described in the Senior Collateral Documents (collectively, the "Personal
Property Collateral"); and (c) all or substantially all of the intangible
property of the Borrower, now owned or hereafter acquired, including, without
limitation, all general intangibles, patents, trademarks, tax refunds,
copyrights and other intangible property, all as more specifically described in
the Senior Collateral Documents (collectively, the "Intangible Collateral"). The
Real Property Collateral, Personal Property Collateral, and Intangible
Collateral, together with all proceeds, products, accessions, additions,
improvements and attachments thereto from time to time, including without
limitation all insurance proceeds, shall be referred to herein collectively as
the "Collateral";
WHEREAS, the Borrower has requested that the Senior Agent, the Senior
Lenders and the Senior Collateral Trustee enter into that certain amendment
agreement, of even date herewith (the "Senior Amendment Agreement"), pursuant to
which the Senior Lenders would approve, among other changes to the Senior Credit
Agreement, the Borrower's incurrence of up to $165,000,000 in certain additional
secured indebtedness (the "Second Lien Loans") made available to the Borrower
under the terms of that certain credit agreement (the "Second Lien Credit
Agreement"), dated as of June 29, 2001, among WPS, the lenders party thereto
from time to time (together with their successors and assigns, the "Second Lien
Lenders"), and the Second Lien Administrative Agent;
WHEREAS, the obligations of the Borrower under the Second Lien Credit
Agreement are secured pursuant to the terms of the Second Lien Collateral
Security Agreement, various mortgages, deeds of trust, deeds to secure debt,
pledge agreements and other collateral documents executed by the Borrower in
favor of the Second Lien Administrative Agent for its benefit and for the
benefit of the Second Lien Lenders (collectively, as the same may be amended,
supplemented, modified or replaced from time to time, the "Second Lien
Collateral Documents") by second liens on and security interests in the
Collateral;
WHEREAS, the Senior Collateral Trustee, on behalf of itself, the Senior
Agent, the Senior Lenders and their respective successors and assigns, and the
Second Lien Administrative Agent and the Second Lien Lenders, on behalf of
themselves and their respective successors and assigns, desire to enter into
this Agreement to evidence their agreement with respect to, among other things,
the relative priorities of their respective security interests in and liens on
the Collateral.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and to induce the Senior Collateral Trustee and the Senior Lenders
to enter into the Senior Amendment Agreement, and to induce the Second Lien
Administrative Agent and the Second Lien Lenders to enter into the Second Lien
Credit Agreement, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Recitals of this
Agreement.
Section 1.2 For purposes of this Agreement, the following terms shall
have the following meanings:
"Agreement" means this Intercreditor and Lien Subordination Agreement,
as amended, supplemented or otherwise modified from time to time.
"Bankruptcy Event" means, with respect to the Borrower, WPS
individually, or any of the Subsidiaries, the commencement or initiation of any
voluntary or involuntary dissolution, winding-up, total or partial liquidation
or reorganization, or bankruptcy, insolvency, receivership or other similar
statutory or common law proceedings or arrangements involving the Borrower, WPS
individually, or any of the Subsidiaries, or the readjustment of liabilities or
any assignment for the benefit of creditors or any marshalling of its assets or
liabilities with respect thereto.
"Borrower" shall have the meaning ascribed to such term in the Recitals
to this Agreement, and includes all successors in interest of WPS and/or any of
the Subsidiaries, together with any other related entity which grants collateral
or other security to the Senior Collateral Trustee or any Senior Lender to
secure the First Lien Indebtedness and/or to the Second Lien Administrative
Agent or any Second Lien Lender to secure the Second Lien Indebtedness.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina, or New York, New York,
are authorized or required by law to close.
"Excluded Asset Disposition" shall have the meaning ascribed to such
term in the Senior Credit Agreement.
"First Lien Indebtedness" means (a) the collective reference to (i) the
principal of and interest on (including, without limitation, interest accruing
at the then applicable rate provided in the Senior Credit Agreement after the
maturity of the Senior Loans and interest accruing at the then applicable rate
provided in the Senior Credit Agreement after the commencement of any Bankruptcy
Event or like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Senior
Loans, (ii) all other obligations and liabilities of the Borrower and the other
Credit Parties (as defined in the Senior Loan Agreement) to the Senior Lenders,
the Senior Agent, or the Senior Collateral Trustee under or in connection with
the Senior Credit Agreement, any other Credit Document (as defined in the Senior
Loan Agreement) or under any other loan, credit or collateral document, (iii)
all liabilities, obligations, charges, fees and/or expenses, whenever arising,
owing from any Credit Party to any Senior Lender, or any affiliate of a Senior
Lender, under or pursuant to any cash management, treasury, depository or other
commercial banking agreement (including, but not limited to, any liabilities and
obligations incurred in connection with automated clearinghouse
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transfers and any advances made in respect of uncollected funds) and (iv) all
liabilities and obligations under or pursuant to any interest rate protection
agreement or foreign exchange currency agreement (as the same may be amended,
modified, or supplemented from time to time) entered into by the Borrower or any
of its consolidated subsidiaries and relating to the Senior Loans, whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of the Senior Agent, the Senior Collateral Trustee, and legal
counsel to the foregoing that are required to be paid by the Borrower pursuant
to the terms of the Senior Credit Agreement, this Agreement or any other loan,
credit or collateral document or fee letter entered into by the Borrower and
relating to the Senior Loans), and (b) all renewals, refundings, restructurings
and other refinancings thereof; provided, however, that the principal component
of the First Lien Indebtedness shall not exceed an amount equal to $725,000,000
less the amount of net cash proceeds from the sale, transfer, casualty,
condemnation or other disposition of Collateral resulting in mandatory
prepayments applied to the principal amount of the First Lien Indebtedness.
"First Priority Liens" has the meaning provided in Section 2.1.
"Permitted Mandatory Prepayments" shall mean any payments upon the
Second Lien Indebtedness occurring as a result of the Borrower's sale, transfer,
casualty, condemnation or other disposition of any of the Collateral (other than
an Excluded Asset Disposition) to the extent that (a) the Senior Lenders provide
their prior written consent or agreement that the net proceeds thereof, or a
portion of such net proceeds, is not required to be applied as a mandatory
prepayment under the Senior Credit Agreement, or (b) any net proceeds of such
sale, transfer or other disposition remain after application to the First Lien
Indebtedness to the extent required by the Senior Credit Agreement.
Notwithstanding any other term or condition hereof, no obligation or agreement
shall be implied or imposed upon the Senior Lenders to consent to or allow any
such Permitted Mandatory Prepayment.
"Second Lien Indebtedness" means (a) the collective reference to the
principal of and interest on (including, without limitation, interest accruing
at the then applicable rate provided in the Second Lien Credit Agreement after
the maturity of the loans made pursuant thereto and interest accruing at the
then applicable rate provided in the Second Lien Credit Agreement after the
commencement of any Bankruptcy Event or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Second Lien Loans, all other obligations and
liabilities of the Borrower to the Second Lien Lenders or the Second Lien
Administrative Agent under or in connection with the Second Lien Credit
Agreement or under any other loan, credit or collateral document (as the same
may be amended, modified or supplemented from time to time) entered into by the
Borrower and relating to the Second Lien Loans, and any other indebtedness,
liabilities or obligations of the Borrower that at any time may be secured by
any Second Priority Lien, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of the Second Lien
Administrative Agent and counsel to the Second Lien Administrative Agent that
are required to be paid by the Borrower pursuant to the terms of the Second Lien
Credit Agreement or any other agreement), and (b) all renewals, refundings,
restructurings and other refinancings thereof.
"Second Priority Liens" has the meaning provided in Section 2.1.
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ARTICLE II
GENERAL INTERCREDITOR AND LIEN SUBORDINATION PROVISIONS
Section 2.1 Agreement to Subordinate Liens. The Senior Collateral
Trustee, for itself, the Senior Agent, the Senior Lenders and their respective
successors and assigns, hereby acknowledge that the Second Lien Administrative
Agent has been granted liens on and security interests in the Collateral
pursuant to the Second Lien Collateral Documents. The Borrower, for itself and
its successors and assigns, covenants and agrees, and each of the Second Lien
Lenders and the Second Lien Administrative Agent, each for itself and its
respective successors and assigns, hereby agrees, that, to the extent and in the
manner set forth in this Article, all liens now or hereafter acquired by Senior
Collateral Trustee or any of the Senior Lenders in any or all of the Collateral
(the "First Priority Liens") to secure the First Lien Indebtedness shall at all
times be prior and superior to any lien now held or hereafter acquired by the
Second Lien Administrative Agent or any of the Second Lien Lenders in the
Collateral (the "Second Priority Liens"). Such priority shall be applicable
irrespective of the time or order of attachment or perfection of any security
interest or the time or order of filing of any financing statements, deeds of
trust or other documents, or any statutes, rules or law, or judicial
interpretations to the contrary. In the event and to the extent, if any, that
the liens arising pursuant to the Second Lien Collateral Documents attach to or
encumber property of the Borrower upon which First Priority Liens do not exist
or attach, then the Second Priority Liens shall be deemed to secure the First
Lien Indebtedness (in addition to the Second Lien Indebtedness) and any proceeds
derived from any such property which is paid to or received or obtained by the
Second Lien Administrative Agent shall be held for the benefit of and paid over
to the Senior Collateral Trustee for the benefit of the Senior Lenders until
such time as the Senior Collateral Trustee obtains a lien on such property or
the First Lien Indebtedness is satisfied in full, whichever occurs first. The
lien subordination provisions in this Agreement are for the benefit of and shall
be enforceable directly by the Senior Collateral Trustee, the Senior Agent and
the Senior Lenders. The Senior Collateral Trustee, the Senior Agent and the
Senior Lenders shall be deemed to have entered into the Senior Amendment
Agreement in reliance upon this Agreement.
Section 2.2 Disposition of Collateral; Senior Collateral Trustee's
Limited Appointment as Attorney-in-Fact.
(a) Each of the Second Lien Lenders and the Second Lien
Administrative Agent hereby agrees that, until all First Lien
Indebtedness has been paid in full in cash (including cash
collateralizing any letter of credit obligations outstanding under the
Senior Credit Agreement) and satisfied and the commitments of the
Senior Lenders to make loans to the Borrower under the Senior Credit
Agreement have been terminated, the Senior Collateral Trustee may for
the purpose of seeking the repayment of the First Lien Indebtedness,
dispose of, and exercise any other rights with respect to any or all of
the Collateral (including, without limitation, release its liens on any
of the Collateral, as permitted by the Senior Credit Agreement and the
Senior Collateral Trust Agreement, in connection with a consensual
disposition thereof by the Borrower), free of the Second Priority
Liens, provided that (i) the Second Lien Collateral Trustee and the
Second Lien Lenders retain any rights any of them may have as a junior
secured creditor with respect
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to the surplus, if any, arising from any such disposition or
enforcement, and the Senior Collateral Trustee shall deliver any such
surplus paid to or received by the Senior Collateral Trustee or any
Senior Lender to the Second Lien Administrative Agent; and (ii) any net
cash proceeds received or obtained by the Senior Collateral Trustee
from the disposition of the Collateral (other than any Excluded Asset
Disposition) shall be applied in accordance with the Senior Collateral
Documents as in effect on the date hereof, and to the extent of the
application of such amounts to the principal amount of the First Lien
Indebtedness, such application shall permanently reduce the principal
amount of the First Lien Indebtedness. In the event that the Senior
Collateral Trustee intends to release any of its liens on all or any
material portion of the Collateral in connection with any such
disposition or exercise, the Senior Collateral Trustee agrees to use
its reasonable best efforts to give the Second Lien Administrative
Agent prompt notice thereof, which notice shall state (i) the portion
of the Collateral to be sold or disposed of, (ii) that such Collateral
shall be sold free and clear of the First Priority Liens and Second
Priority Liens, and the principal amount of the First Lien
Indebtedness, if any, to be permanently reduced as a result thereof;
provided, however, that the failure of the Senior Collateral Trustee to
provide such notice shall not nullify or adversely affect any of its
rights hereunder or relieve the Second Lien Administrative Agent or
Second Lien Lenders of any of their respective obligations hereunder or
create any liability of the Senior Collateral Trustee or any Senior
Lender to the Second Lien Administrative Agent or Second Lien Lenders.
Upon any such disposition of any of the Collateral by the Senior
Collateral Trustee or any Senior Lender (or by the Borrower with the
consent of Senior Collateral Trustee or the Senior Lenders), the Second
Lien Administrative Agent agrees, if requested, to execute and promptly
deliver any and all releases or other documents or agreements which the
Senior Collateral Trustee reasonably deems necessary to accomplish a
disposition thereof free of the Second Priority Liens. The Second Lien
Administrative Agent and each Second Lien Lender agrees that any funds
of the Borrower which it obtains through the exercise of any right of
setoff or other similar right constitute Collateral, and the Second
Lien Administrative Agent or such Second Lien Lender shall immediately
pay such funds to Senior Collateral Trustee to be applied to the
outstanding First Lien Indebtedness.
(b) The Second Lien Administrative Agent and each of the
Second Lien Lenders hereby irrevocably constitutes and appoints the
Senior Collateral Trustee and any authorized officer or agent thereof,
with the power of substitution, as its true and lawful attorney-in-fact
upon failure in the due performance or observance by the Second Lien
Administrative Agent or any Second Lien Lender of the provisions set
forth in the third sentence of Section 2.2(a) of this Agreement, within
five (5) Business Days' request by the Senior Collateral Trustee, with
the irrevocable power and authority, in the place and stead of the
Second Lien Administrative Agent or such Second Lien Lender, and in the
name of the Second Lien Administrative Agent or such Second Lien
Lender, or in Senior Collateral Trustee's own name, from time to time,
in Senior Collateral Trustee's discretion, for the purpose of carrying
out such failed term of Section 2.2(a) of this Agreement and the Second
Lien Administrative Agent and each Second Lien Lender hereby gives the
Senior Collateral Trustee the power and right, on behalf of the Second
Lien Administrative Agent and each Second Lien Lender without prior
notice to or assent by the same, to (in connection with such failure)
take any and all reasonably appropriate action and to execute any and
all documents and instruments which may be necessary, in
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the reasonable determination of the Senior Collateral Trustee, for the
Senior Collateral Trustee to enforce the terms of, dispose of, or
exercise any other rights with respect to, any or all of the Collateral
relating to such failure, free of the Second Priority Liens, as
provided by Section 2.2 of this Agreement, including but not limited to
the execution of any endorsements, releases, terminations, assignments
or other instruments of conveyance or transfer or lien cancellation
with respect to the Collateral. The Second Lien Administrative Agent
and each Second Lien Lender hereby ratifies all that such attorneys
shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until all First Lien Indebtedness
has been paid in full in cash (including the cash collateralization of
any letter of credit obligations outstanding under the Senior Credit
Agreement) and satisfied and all commitments of the Senior Lenders
under the Senior Credit Agreement have been terminated. The Senior
Collateral Trustee shall use its reasonable best efforts to give prompt
notice to the Second Lien Administrative Agent of any action taken by
the Senior Collateral Trustee pursuant to the powers granted under this
Section 2.2(b); provided, however, that any failure of the Senior
Collateral Trustee to provide such prompt notice shall not nullify or
otherwise adversely affect any rights of the Senior Collateral Trustee
or any Senior Lender hereunder or relieve the Second Lien
Administrative Agent or any Second Lien Lender of any of their
respective obligations hereunder or create any liability of the Senior
Collateral Trustee or any Senior Lender to the Second Lien
Administrative Agent or any Second Lien Lender.
(c) Notwithstanding anything to the contrary contained
herein, in the event that the Senior Collateral Trustee releases its
liens on the Collateral as a result of the prior or concurrent
indefeasible payment in full in cash of the First Lien Indebtedness and
termination of the commitments of the Senior Lenders under the Senior
Credit Agreement, the Second Lien Administrative Agent shall not be
obligated to release its liens on any Collateral remaining after giving
effect to such payment and termination (and any sale, transfer or other
disposition of Collateral occurring in connection therewith); provided,
however, in connection with any refinancing or replacement of all or
any portion of the First Lien Indebtedness pursuant to a credit
agreement containing economic terms which are not materially less
favorable to the Borrower than the Senior Credit Agreement, the Second
Lien Administrative Agent and each Second Lien Lender agrees, if
requested by the holders of the First Lien Indebtedness, to execute an
intercreditor and lien subordination agreement substantively similar to
this Agreement.
Section 2.3 Limitations on Rights and Remedies.
(a) Until all First Lien Indebtedness has been paid in
full in cash (including the cash collateralization of any letter of
credit obligations outstanding under the Senior Credit Agreement) and
satisfied and all and commitments of the Senior Lenders under the
Senior Credit Agreement have been terminated, and except as set forth
in Section 2.4, the Second Lien Administrative Agent and the Second
Lien Lenders shall not be entitled to (i) exercise any rights or
remedies with respect to the Second Priority Liens or the Collateral,
including without limitation the right to (A) enforce any Second
Priority Liens or sell or otherwise foreclose on any portion of the
Collateral or (B) request any action, institute any suit or
proceedings, give any instructions, make any election, notice account
debtors or make collections with respect to any portion of the
Collateral; provided,
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however, that the Second Lien Administrative Agent and the Second Lien
Lenders may, with the prior written consent of the Senior Collateral
Trustee, which consent shall not be unreasonably withheld, join with
the Senior Collateral Trustee, the Senior Agent and the Senior Lenders
in any enforcement, collection, execution, levy or foreclosure
proceeding with respect to any Collateral, including, without
limitation, petitioning, filing or joining in any involuntary
bankruptcy proceeding; (ii) except for liens and security interests
subject to this Intercreditor and Lien Subordination Agreement
(including, without limitation, liens granted in the Second Lien
Security Agreement which attach to the Collateral acquired by the
Borrower after the closing of the Second Lien Loans), demand, accept or
obtain any lien on any Collateral, (iii) amend or modify (or permit the
amendment or modification of) the terms of the Second Lien Credit
Agreement, Second Lien Collateral Security Agreement or other documents
evidencing the Second Lien Indebtedness in a manner adverse to the
interests of the Senior Collateral Trustee or the Senior Lenders
(including specifically shortening any maturity or requiring any
payment sooner than previously scheduled or increasing the interest
rate or fees applicable thereto or causing affirmative or negative
covenants therein to be more restrictive than applicable under the
Senior Credit Agreement); provided, however, that the Second Lien
Administrative Agent and the Second Lien Lenders shall execute and
deliver amendments and modifications of the Second Lien Credit
Agreement, the Second Lien Collateral Security Agreement or other
documents evidencing the Second Lien Indebtedness as shall be necessary
to cause the financial covenants of such agreements and documents to
conform to the corresponding terms of the Senior Credit Agreement,
Senior Collateral Trust Agreement or other documents evidencing the
First Lien Indebtedness, respectively, in each case to the extent
applicable; or (iv) accelerate or make any demand for payment of (other
than regularly scheduled payments of interest, any Permitted Mandatory
Prepayments and any adequate protection payments or plan distributions
permitted by Section 2.4(g) hereof) any of the Second Lien Indebtedness
unless or until either (A) all of the First Lien Indebtedness has
become due and payable, whether by acceleration or otherwise or (B) the
Senior Collateral Trustee shall have received at least 180 days' prior
written notice of such acceleration or demand for payment, it being
understood and agreed that any such acceleration or demand for payment
permitted by subclause (A) or (B) shall be subject to all other terms
of this Agreement (including specifically, without limitation,
subsection (i) of this paragraph (a) and the turnover provisions of
Section 2.13).
(b) Until the date 91 days after all First Lien
Indebtedness has been paid in full in cash and satisfied and the
obligations and commitments of the Senior Lenders under the Senior
Credit Agreement have been terminated, neither the Second Lien
Administrative Agent nor any Second Lien Lender shall take any action,
directly or indirectly, to initiate or promote an involuntary
bankruptcy or receivership proceeding or receivership in respect of the
Borrower.
Section 2.4 Intercreditor Arrangements in Bankruptcy.
(a) This Agreement shall remain in full force and effect
and enforceable pursuant to its terms in accordance with Section 510(a)
of the Bankruptcy Code, and all references herein to the Borrower shall
be deemed to apply to such entity as debtor in possession and to any
trustee in bankruptcy for the estate(s) of such entity.
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(b) In the context of any Bankruptcy Event, the Senior
Collateral Trustee, as it determines in its discretion for the benefit
of or upon the direction of the Senior Lenders, may file or make (or
refuse to file or make) any motion, proceeding, objection, claim or
argument in respect of the Collateral or the interests of the Senior
Lenders therein, without seeking the prior consent or support from the
Second Lien Administrative Agent or any Second Lien Lender, and whether
or not any such action (or inaction) by the Senior Collateral Trustee
adversely affects or conflicts with any interests of the Second Lien
Administrative Agent or the Second Lien Lenders in the Collateral or
otherwise.
(c) Without limiting the generality of the foregoing, the
Second Lien Administrative Agent and each Second Lien Lender agrees
that if a Bankruptcy Event occurs, (i) the Senior Collateral Trustee
and the Senior Lenders may consent to the use of cash collateral on
such terms and conditions and in such amounts as they, in their sole
discretion, may decide without seeking or obtaining the consent of the
Second Lien Administrative Agent or any Second Lien Lender as holder of
an interest in the Collateral (subject, however, to the reservation of
rights set forth in Section 2.4(g)); (ii) the Senior Lenders (or any of
them) may (A) provide post-petition financing to the Borrower or (B)
consent to the granting of a priming lien to secure post-petition
financing, in each case pursuant to Section 364 of the Bankruptcy Code
or other applicable law and on such terms and conditions and in such
amounts as such Senior Lenders, in their sole discretion, may decide
without seeking or obtaining the consent of the Second Lien
Administrative Agent or the Second Lien Lenders as holder of an
interest in the Collateral (subject, however, to the reservation of
rights set forth in Section 2.4(g)); (iii) the Second Lien Collateral
Trustee and/or the Second Lien Lenders shall not oppose any sale or
other disposition of any assets comprising part of the Collateral free
and clear of security interests, liens or other claims of any party,
including the Second Lien Administrative Agent and the Second Lien
Lenders, under Section 363(b) of the Bankruptcy Code if (A) the Senior
Collateral Trustee has consented to such sale or disposition of such
assets and (B) the respective interests of the Senior Collateral
Trustee and the Senior Lenders, on the one hand, and the Second Lien
Administrative Agent and the Second Lien Lenders, on the other hand,
attach to the proceeds of such disposition, or alternatively such
proceeds are paid to the Senior Collateral Trustee for the benefit of
the Senior Lenders first, to reduce the First Lien Indebtedness, and
then the surplus, if any, is delivered to the Second Lien
Administrative Agent; (iv) the Second Lien Administrative Agent and the
Second Lien Lenders shall not propose, without the consent of the
Senior Collateral Trustee and the Senior Lenders, any plan of
reorganization or liquidation for the Borrower which impairs (within
the meaning of Section 1126 of the Bankruptcy Code) the claims of the
Senior Collateral Trustee and/or the Senior Lenders; and (v) the Second
Lien Administrative Agent and the Second Lien Lenders shall not provide
any debtor-in-possession financing to the Borrower on any basis which
primes any lien or security interest existing or arising in favor of
the Senior Collateral Trustee or the Senior Lenders.
(d) The Second Lien Administrative Agent and each Second
Lien Lender agrees that it will not initiate, prosecute, encourage, or
assist with any other person to initiate or prosecute any claim, action
or other proceeding (i) challenging the validity or enforceability of
this Agreement, (ii) challenging the validity, enforceability or
unavoidability of any claim of the Senior Collateral Trustee or the
Senior Lenders, (iii)
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challenging the perfection, enforceability or unavoidability of any
First Priority Liens or (iv) asserting any claims which the Borrower
may hold with respect to the Senior Collateral Trustee or the Senior
Lenders or the First Lien Indebtedness, if any. The Senior Collateral
Trustee, for itself and on behalf of the Senior Agent and the Senior
Lenders, agrees that it will not initiate, prosecute, encourage, or
assist with any other person to initiate or prosecute any claim, action
or other proceeding (i) challenging the validity or enforceability of
this Agreement, (ii) challenging the validity, enforceability or
unavoidability of any claim of the Second Lien Administrative Agent or
the Second Lien Lenders, (iii) challenging the perfection,
enforceability or unavoidability of any Second Priority Liens or (iv)
assisting any claims which the Borrower may hold with respect to the
Second Lien Administrative Agent or the Second Lien Lenders or the
Second Lien Indebtedness, if any. For the avoidance of doubt, the terms
of this paragraph apply whether or not a Bankruptcy Event has occurred
and such terms shall survive the termination of this Agreement.
(e) To the extent that the Senior Collateral Trustee or
any Senior Lender receives payments or transfers on the First Lien
Indebtedness or proceeds of the Collateral which are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law, or
equitable cause, then, to the extent of such payment or proceeds
received, the First Lien Indebtedness, or part thereof, intended to be
satisfied shall be revived and continue in full force and effect as if
such payments or proceeds had not been received by the Senior
Collateral Trustee or such Senior Lender.
(f) The Second Lien Administrative Agent and each Second
Lien Lender shall be entitled (A) to file proofs of claim and all
necessary responsive or defensive pleadings in opposition to any
motion, claim, adversary proceeding or other pleading made by any
person objecting to or otherwise seeking the disallowance of the claims
of the Second Lien Administrative Agent or any Second Lien Lender,
including, without limitation, any claims secured by the Collateral;
and (B) to file all pleadings, objections, motions or agreements which
assert rights or interests available to unsecured creditors of the
Borrower arising under either the Bankruptcy Code or applicable
non-bankruptcy law (other than any pleadings, objections, motions or
agreements contrary to Sections 2.4(c)(iii), (iv) and (v) or 2.4(d)),
including, without limitation, motions and other pleadings to terminate
the exclusive periods under 11 U.S.C. ss.1121, motions and other
pleadings for the appointment of an examiner or a trustee, and motions
and other pleadings to confirm or deny confirmation of any plan of
reorganization; provided, however, that the Senior Collateral Trustee
and the Senior Lien Lenders shall be entitled to support or contest any
such requests for relief or other claims, motions, arguments or
objections raised or asserted by the Second Lien Administrative Agent
or the Second Lien Lenders. The reference to pleadings, objections,
motions or agreements which assert rights or interests available to
unsecured creditors is intended to describe actions which may be taken
by the Second Lien Administrative Agent or the Second Lien Lenders and
does not imply that any part of the Second Lien Indebtedness is
unsecured, nor will the taking of any such actions by the Second Lien
Administrative Agent or any Second Lien Lender create any implication
or inference that any part of the Second Lien Indebtedness is
unsecured.
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(g) Subject to the restrictions of Sections 2.4(c)(iii),
(iv) and (v) and Section 2.4(d), the Second Lien Administrative Agent
and each Second Lien Lender may file, prosecute, or make pleadings,
objections, motions or agreements asserting their interests in the
Collateral and their entitlement, if any, to adequate protection
thereof in accordance with Sections 361 through 364 of the Bankruptcy
Code; provided, however, that (A) the Senior Collateral Trustee and the
Senior Lien Lenders shall be entitled to support or contest any such
requests for relief or other claims, motions, arguments, or objections
raised or asserted by the Second Lien Administrative Agent or any
Second Lien Lender; and (B) any replacement lien or priority claim
(arising under Sections 503 or 507(b) of the Bankruptcy Code) granted
or awarded to the Second Lien Administrative Agent or the Second Lien
Lenders as adequate protection shall be junior in priority to any lien
(pre-petition or post-petition) or priority claim granted or existing
in favor of the Senior Collateral Trustee and the Senior Lenders. To
the extent that the Senior Collateral Trustee and the Senior Lenders
consent to the use of cash collateral by the Borrower or the terms of
any postpetition financing to be provided to the Borrower, such consent
shall not prevent the Second Lien Administrative Agent or the Second
Lien Lenders from contesting such use of cash collateral or such
financing or from seeking adequate protection of their interests on
account thereof. The Second Lien Administrative Agent and the Second
Lien Lenders shall be entitled to retain and apply to the Second Lien
Indebtedness (a) any cash payments made by the Borrower as adequate
protection for its use of cash collateral, provided that the amount of
such cash payments does not exceed the amount of interest applicable to
the Second Lien Indebtedness under the Second Lien Credit Agreement,
plus fees and expenses otherwise compensable under the Second Lien
Credit Agreement; and (b) any payments or other distributions made or
provided to the holders of the Second Lien Indebtedness under a
confirmed plan of reorganization.
Section 2.5 Obligations of the Borrower Unconditional.
(a) Nothing contained in this Agreement is intended to or
shall relieve the obligations of the Borrower respectively to the
Senior Collateral Trustee, the Senior Lenders, the Second Lien
Administrative Agent, or the Second Lien Lenders to pay any amount in
respect of the First Lien Indebtedness or the Second Lien Indebtedness,
as the case may be, as and when such amount shall become due and
payable in accordance with the terms thereof, or to affect the relative
rights of the Senior Collateral Trustee, the Senior Lenders, the Second
Lien Administrative Agent or the Second Lien Lenders, on the one hand,
and the other creditors of the Borrower, on the other hand. All rights,
interests, and obligations of the Senior Collateral Trustee, the Senior
Lenders, the Second Lien Administrative Agent, the Second Lien Lenders,
and the Borrower hereunder, shall remain in full force and effect
irrespective of:
(i) any lack of validity or enforceability of
any loan document or any other agreement or instrument
relating thereto;
(ii) any change in the time, manner or place of,
or in any other term of, all or any of the First Lien
Indebtedness or the Second Lien Indebtedness, or any amendment
or waiver of or any consent to departure from any provision of
the
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Senior Credit Agreement, the Second Lien Credit Agreement, or
any other loan or collateral document relating to either of
the foregoing;
(iii) any exchange, release, non-perfection,
invalidity, unenforceability or avoidability of any lien or
security interest in any Collateral, or any release or
amendment or waiver of or consent to departure from any
guarantee, for all or any of the First Lien Indebtedness or
the Second Lien Indebtedness; or
(iv) any other circumstances which might
otherwise constitute a defense available to, or a discharge
of, the Borrower in respect of the First Lien Indebtedness, or
of the Second Lien Indebtedness, in respect of this Agreement.
(b) Nothing contained in this Agreement shall affect or
excuse the obligation of the Borrower to make, or prevent the Borrower
from making, at any time, payment of any amount in respect of the First
Lien Indebtedness and the Second Lien Indebtedness.
Section 2.6 No Other Beneficiaries of Lien Subordination. This
Agreement and the subordination provisions contained herein are intended only
for the benefit of the holders of First Lien Indebtedness and no other creditor
of the Borrower. The Borrower will not publish or give to any creditor or
prospective creditor of the Borrower any copy, statement or summary (or
acquiesce in the publication or giving of any such copy, statement or summary)
as to the subordination of the lien rights of the Second Lien Administrative
Agent and the Second Lien Lenders without also stating or causing to be stated
(in a conspicuous manner in the case of any document) that such subordination is
solely for the benefit of the holders of First Lien Indebtedness and not for the
benefit of any other creditor of the Borrower or the Borrower.
Section 2.7 Rights of Holders of First Lien Indebtedness Not to be
Impaired. No right of any present or future holder of any First Lien
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or omission in good faith by any
such holder, or by any noncompliance by the Borrower with the terms and
provisions and covenants herein or in any documents or instruments supporting or
evidencing the Second Lien Indebtedness, regardless of any knowledge thereof
that any such holder of First Lien Indebtedness may have or otherwise be charged
with.
Section 2.8 Waivers. The Senior Collateral Trustee and the Senior
Lenders shall not have any liability or duty, of any kind, nature or origin, to
the Second Lien Administrative Agent or any Second Lien Lender, express or
implied, except as set forth in this Agreement. The Second Lien Administrative
Agent and each Second Lien Lender hereby waives and releases any claim which it
may now or hereafter have against the Senior Collateral Trustee and/or any
Senior Lender arising out of any and all actions which it, in good faith, takes
or omits to take pursuant to or in connection with the transactions described or
referred to herein, including without limitation, (a) actions with respect to
the creation, perfection or continuation of liens or security interest in the
Collateral and other security for the First Lien Indebtedness, (b) actions
(other than gross negligence or willful misconduct) with respect to the
occurrence of any event of default under this Agreement, the Senior Credit
Agreement, or any other loan or collateral documents relating to the First Lien
Indebtedness, (c) action with respect to the foreclosure upon, sale, release, or
depreciation of, or failure to realize upon, any of the Collateral (other than
gross negligence, willful misconduct, or the failure to act in a commercially
reasonable manner in the
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disposition of the Collateral, taken as a whole), (d) actions with respect to
the collection of any claim for all or any part of the First Lien Indebtedness
from any account debtor, guarantor or any other party, (e) any other action with
respect to the enforcement of any loan documents relating to the First Lien
Indebtedness or the valuation, use, protection or disposition of the Collateral
or any other security for the First Lien Indebtedness (other than gross
negligence, willful misconduct, or the failure to act in a commercially
reasonable manner in the disposition of the Collateral, taken as a whole), and
(f) the election of the Senior Collateral Trustee or any Senior Lender, in any
proceeding instituted under Chapter 11 of the Bankruptcy Code, for application
of Section 1111(b) of the Bankruptcy Code.
Section 2.9 Remedies.
(a) Rights Cumulative. The rights and remedies of the
Senior Collateral Trustee and the Senior Lenders under this Agreement,
the Senior Credit Agreement, the Senior Collateral Trust Agreement, or
any other loan or collateral documents relating to the First Lien
Indebtedness shall be cumulative and not exclusive of any rights or
remedies which any of them would otherwise have. In exercising such
rights and remedies the Senior Collateral Trustee and the Senior
Lenders may be selective and no failure or delay by the Senior
Collateral Trustee or the Senior Lenders in exercising any right shall
operate as a waiver of such right, nor shall any partial or single
exercise of any power or right preclude its other or further exercise
or the exercise of any other power or right. The rights and remedies of
the Second Lien Administrative Agent and the Second Lien Lenders under
this Agreement, the Second Lien Credit Agreement, the Second Lien
Collateral Security Agreement, or any other loan or collateral
documents relating to the Second Lien Indebtedness shall be cumulative
and not exclusive of any rights or remedies which any of them would
otherwise have. In exercising such rights and remedies, subject to the
terms of this Agreement, the Second Lien Administrative Agent and the
Second Lien Lenders may be selective and no failure or delay by the
Second Lien Administrative Agent or the Second Lien Lenders in
exercising any right shall operate as a waiver of such right, nor shall
any partial or single exercise of any power or right preclude its other
or further exercise or the exercise of any other power or right.
(b) Waiver of Marshalling. The Borrower, the Second Lien
Administrative Agent, and the Second Lien Lenders each hereby waives
any right to require marshalling of assets by the Senior Collateral
Trustee or the Senior Lenders and any similar rights.
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Section 2.10 Consent to Recording of Second Priority Liens. The Senior
Collateral Trustee and the Borrower each hereby consent to the recording of the
Second Priority Liens from time to time in the appropriate public registries.
Section 2.11 Transfer Second Lien Indebtedness. Each of the Second Lien
Lenders agrees not to transfer any Second Lien Indebtedness without causing such
transferee or assignee to execute a written acknowledgement agreeing to accept
the terms and conditions of this Agreement. Each of the notes evidencing the
Second Lien Indebtedness shall contain a conspicuous legend on its face stating
that the indebtedness evidenced by such promissory note is subject to the terms
and conditions of this Agreement and that any purchaser, assignee or transferee
of such instrument agrees to be bound by the terms hereof.
Section 2.12 Senior Collateral Trustee As Bailee for Perfection of
Interest in Possessory Collateral. The Second Lien Administrative Agent hereby
appoints the Senior Collateral Trustee (and the Senior Collateral Trustee hereby
accepts such appointment) as the agent for the Second Lien Administrative Agent
solely for purposes of perfecting the Second Lien Administrative Agent's liens
on Collateral which is of a type such that perfection of a lien thereon may be
accomplished by possession or control thereof. In the event all Senior First
Lien Indebtedness shall have been indefeasibly paid in full in cash (including
the cash collateralization of any letter of credit obligations) and all of the
commitments of the Senior Lenders shall have been terminated, the Senior
Collateral Trustee shall deliver to the Second Lien Administrative Agent all
Collateral remaining in the possession or control of the Senior Collateral
Trustee (and shall promptly take whatever action is necessary to vest in the
Second Lien Administrative Agent control of all such Collateral of which the
Senior Collateral Agent has control), and the Borrower hereby irrevocably
authorizes any such delivery of Collateral by the Senior Collateral Trustee. The
obligations of the Senior Collateral Trustee and the Borrower under the
preceding sentence shall survive the termination of this Agreement. As of the
date of this Agreement, the Senior Collateral Trustee holds in its physical
possession or control, to secure the First Lien Indebtedness, the Collateral
identified on Exhibit "A" attached hereto.
Section 2.13 No Redemption of Second Lien Indebtedness. Notwithstanding
any other term or condition hereof, until the First Lien Indebtedness has been
repaid in full in cash (including the cash collateralization of any letter of
credit obligations outstanding under the Senior Credit Agreement) and all of the
commitments of the Senior Lenders have been irrevocably terminated under the
Senior Credit Agreement, the Borrower shall not make, and the Second Lien
Administrative Agent and Second Lien Lenders shall not request, receive or
accept, any payment or other transfer of property or value from the Borrower in
repayment, redemption, satisfaction or retirement of any of the Second Lien
Indebtedness, except for (i) regularly scheduled payments of interest as set
forth in the Second Lien Credit Agreement, (ii) adequate protection payments as
permitted pursuant to Section 2.4(g) hereof, (iii) any Permitted Mandatory
Prepayments, and (iv) any payments or other distributions made or provided to
the holders of the Second Lien Indebtedness under a confirmed plan of
reorganization for the Borrower; provided, further, that any liens or security
interests in the Collateral granted to or for the benefit of the Second Lien
Lenders under any such confirmed plan of reorganization shall be junior in
priority to any liens or security interests existing or granted to or for the
benefit of the Senior Lenders and shall continue to be subject to the terms of
this Agreement. In the event that the Second Lien Administrative Agent or any
Second Lien Lender receives any payment or transfer from the Borrower in
violation of the foregoing, the Second Lien Administrative Agent
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or such Second Lien Lender, as applicable, shall hold such payment in trust for
the Senior Collateral Trustee, provide immediate written notice to the Senior
Collateral Trustee of its receipt of such payment or transfer, and shall
immediately pay or transfer such property or value over to the Senior Collateral
Trustee, accompanied by any appropriate endorsement.
Section 2.14. Certain Notices. Each of the Senior Collateral Trustee
and the Second Lien Administrative Agent hereby agrees to use its reasonable
best efforts to give written notice to the other of any declaration of
acceleration (as permitted hereunder), event of default declared in writing by
it or, in the case of the Senior Collateral Trustee, commencement of any action
enforcing its rights or remedies under the Senior Credit Agreement; provided,
however, that failure to give any such notice shall not result in liability to
the Senior Collateral Trustee, any Senior Lender, the Second Lien Administrative
Agent or any Second Lien Lender, as the case may be, or modify in any way the
terms and provisions of this Agreement, or otherwise relieve any party of its
respective obligations under this Agreement. No party hereto shall have any
obligation to cure any such default and any payment made or act done by any such
party to cure any such default shall not constitute an assumption of or
participation in the Senior Credit Agreement or the Second Lien Credit Agreement
or the documents executed and delivered in connection therewith or of any of the
respective obligations thereunder.
ARTICLE III
MISCELLANEOUS
Section 3.1 Successors; Continuing Effect. This Agreement is being
entered into for the benefit of, and shall be binding upon, (a) the Senior
Collateral Trustee and the Senior Lenders and each of their respective
successors and assigns, including subsequent holders of First Lien Indebtedness,
and the term "holders of First Lien Indebtedness" shall include any such
subsequent or additional holder of First Lien Indebtedness, wherever the context
permits, and (b) the Second Lien Administrative Agent and the Second Lien
Lenders and each of their respective successors and assigns, including
subsequent holders of the Second Lien Indebtedness, and the term "holders of
Second Lien Indebtedness" shall include any such subsequent or additional holder
of Second Lien Indebtedness, wherever the context permits. The Senior Collateral
Trustee agrees that it will not cease to act as Senior Collateral Trustee unless
its successor agrees to perform the obligations of the Senior Collateral Trustee
set forth in Section 2.12 hereof and accepts the appointment as agent for the
Second Lien Administrative Agent as provided for in Section 2.12 hereof.
Section 3.2 Further Assurances. (a) The Borrower and Second Lien
Administrative Agent will, at the expense of the Borrower, and at any time and
from time to time, promptly execute and deliver all further instruments and
documents, and take all further action, that Senior Collateral Trustee may
reasonably request in order to perfect or otherwise protect any right or
interest granted or purported to be granted hereby or to enable the Senior
Collateral Trustee to exercise and enforce its rights and remedies hereunder,
including, without limitation appropriate amendments to financing statements
executed by the Borrower in favor of the Second Lien Administrative Agent in
order to refer to this Agreement (but this Agreement shall remain fully
effective notwithstanding any failure to execute any additional documents or
instruments). Without limiting the generality of the foregoing, in connection
with any refinancing or replacement of the all or any portion of the First Lien
Indebtedness pursuant to a credit
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agreement containing economic terms which are not materially less favorable to
the Borrower than the Senior Credit Agreement, the Second Lien Administrative
Agent and each Second Lien Lender agrees, if requested by the holders of the
First Lien Indebtedness, to execute an intercreditor and lien subordination
agreement substantively similar to this Agreement.
(b) Each party hereto will, upon the written request of the other
party, from time to time execute and deliver or cause to be executed and
delivered such further instruments and agreements and do or cause to be done
such further acts as may be reasonably necessary or proper to carry out more
effectively the provisions of this Agreement. Upon written request, the Senior
Collateral Trustee shall provide the Second Lien Administrative Agent with
copies of all Senior Collateral Documents in effect at the time of such request;
provided, however, that the Second Lien Administrative Agent acknowledges the
delivery of all or substantially all of the Senior Collateral Documents in
effect as of the date of this Agreement.
Section 3.3 Expenses. The Borrower shall pay to the Senior Collateral
Trustee and the Second Lien Administrative Agent, as the case may be, upon
demand, the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees and expenses of counsel for the Senior
Collateral Trustee or the Second Lien Administrative Agent, as the case may be,
which either of them may incur from time to time in connection with the exercise
or enforcement of any of their respective rights or interests vis-a-vis the
Borrower, the Collateral, or under this Agreement. All such amounts shall
constitute part of the First Lien Indebtedness or the Second Lien Indebtedness,
as the case may be.
Section 3.4 Notices; Amendments etc.
(a) All notices, requests and demands to or upon the
parties to this Agreement to be effective shall be in writing
(including by facsimile or telecopy transmission) and shall be deemed
to have been duly given or made (i) when delivered by hand or (ii)
three Business Days after being deposited in the mail, postage prepaid
or (iii) one Business Day after being sent by priority overnight mail
with an internationally recognized overnight delivery carrier or (iv)
if by telecopy or facsimile, when received, at the addresses or
transmission numbers for notices set forth as follows or to such other
address or transmission number as may be hereafter notified in writing
by the respective parties hereto:
WESTPOINT XXXXXXX INC.
000 Xxxx 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Sears
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BANKERS TRUST COMPANY
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-00-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: XxXxxx X. Xxxx, III
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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(b) This Agreement may be amended and the terms hereof
may be waived only with the written consent of each of the parties
hereto, or their authorized successors and assigns.
Section 3.5 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction, shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or invalidity without
invalidating the remaining portions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
SECTION 3.6 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE SENIOR
COLLATERAL TRUSTEE (FOR ITSELF AND ON BEHALF OF THE SENIOR LENDERS), THE SECOND
LIEN ADMINISTRATIVE AGENT, AND THE SECOND LIEN LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
Section 3.7 Entire Agreement; Governing Law. This Agreement embodies
the entire agreement and understanding of the parties hereto regarding the
subject matter hereof. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 3.8 Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute one agreement.
Section 3.9 Headings. The headings of the several sections in this
Agreement are inserted for convenience of reference only and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
Section 3.10 Termination. Upon the ninety-first (91st) day after all
First Lien Indebtedness has been paid in full in cash and satisfied (including
the cash collateralizing of any letters of credit outstanding under the Senior
Credit Agreement), and all commitments of the Senior Lenders under the Senior
Credit Agreement have been terminated, this Agreement shall immediately
terminate and cease to be effective and the Senior Collateral Trustee, the
Second Lien Administrative Agent, the Second Lien Lenders, and the Borrower
shall be released from their respective obligations hereunder (other than such
obligations that by their terms are stated to survive the termination of this
Agreement); provided, however, that this Agreement shall be automatically
reinstated if at any time payment of, in whole or in part, any of the First Lien
Indebtedness is challenged by the initiation of any suit or proceeding by any
party, or is
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rescinded or must otherwise be restored or returned by the Senior Collateral
Trustee or any Senior Lender as a preference, fraudulent conveyance or otherwise
under any bankruptcy, insolvency or similar law, or under any other state or
federal law, the common law or any ruling in equity, all as though such payment
had not been made, and in such event, all reasonable documented costs and
expenses including, without limitation, any reasonable documented legal fees and
disbursements) incurred by the Senior Collateral Trustee or any Senior Lender in
defending any such action or proceeding or enforcing such reinstatement shall be
deemed included as part of the First Lien Indebtedness.
Section 3.11 Execution by Second Lien Administrative Agent and Senior
Collateral Trustee.
(a) The Second Lien Administrative Agent has executed and
delivered this Agreement for itself and as agent with full authorization to bind
each of the Second Lien Lenders with the same force and effect as if each Second
Lien Lender had executed the signature pages hereof. The Second Lien
Administrative Agent represents and warrants to the Senior Collateral Trustee,
the Senior Agent and the Senior Lender that it has the express authorization to
execute this Agreement for and on behalf of each of the Second Lien Lenders.
(b) The Senior Collateral Trustee has executed and delivered this
Agreement for itself and as agent with full authorization to bind each of the
Senior Lenders with the same force and effect as if each Senior Lender had
executed the signature pages hereof. The Senior Collateral Trustee represents
and warrants to the Second Lien Administrative Agent that it has the express
authorization to execute this Agreement for and on behalf of each of the Senior
Lenders.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the date and
year first above written.
WESTPOINT XXXXXXX INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President-Finance and
Chief Financial Officer
WESTPOINT XXXXXXX (UK) LIMITED
WESTPOINT XXXXXXX (EUROPE) LIMITED
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
WESTPOINT XXXXXXX INC. I
f/k/a West Point-Pepperell Enterprises, Inc.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
X. X. XXXXXXX & CO., INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
X. X. XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
WESTPOINT XXXXXXX STORES INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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XXXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
ALAMAC HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
BANKERS TRUST COMPANY,
for itself as Agent and on behalf of each of the
Second Lien Lenders with due authorization
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
BANK OF AMERICA, N.A.,
----------------------------------------
As Senior Collateral Trustee, for itself and
on behalf of each of the Senior Lenders
with due authorization
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
20
