Exhibit 10.1
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of April 15, 2003, is entered into by and among WPS
Receivables Corporation, a Delaware corporation ("Borrower"), WestPoint Xxxxxxx
Inc., a Delaware corporation ("WestPoint"), as initial servicer, Congress
Financial Corporation (Southern), in its capacity as agent pursuant to the Loan
Agreement (as hereinafter defined) acting for and on behalf of the parties
thereto as lenders (in such capacity, "Agent"), The CIT Group/Commercial
Services, Inc., as co-agent (in such capacity, "Co-Agent"), and the parties to
the Loan Agreement as lenders (individually, each a "Lender" and collectively,
"Lenders").
WITNESSETH:
WHEREAS, Agent and Lenders have entered into financing arrangements
with Borrower pursuant to which Lenders (or Agent on behalf of Lenders) may
make loans and advances to Borrower as set forth in the Loan and Security
Agreement, dated March 28, 2003, by and among Borrower, WestPoint, Agent,
Co-Agent and Lenders (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, the "Loan
Agreement"), and the other agreements, documents and instruments referred to
therein or at any time executed and/or delivered in connection therewith or
related thereto, together with this Amendment (all of the foregoing, including
the Loan Agreement, as the same now exist or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Financing Agreements");
WHEREAS, pursuant to a letter agreement, dated March 28, 2003, among
Borrower, WestPoint, Agent, Co-Agent and Lenders (the "Amendment Delivery
Letter"), WestPoint agreed to deliver or cause to be delivered to Agent, no
later than April 30, 2003, an amendment to the Senior Credit Facility Agreement
and an amendment to the Subordinated Credit Facility Agreement;
WHEREAS, pursuant to the Eighth Amendment and Temporary Waiver
Agreement, dated as of March 31, 2003 (the "Senior Credit Facility Waiver"),
among WestPoint, its Subsidiaries party to the Senior Credit Facility
Agreement, Senior Credit Facility Agent and such lenders under the Senior
Credit Facility Agreement as are required in order for such amendment to be
effective and binding upon all of the lenders thereunder, Senior Credit
Facility Agent and such lenders agreed, among other things, to waive, until
June 10, 2003, the compliance by WestPoint and its Subsidiaries party to the
Senior Credit Facility Agreement with (i) the Senior Credit Facility Covenants
and (ii) certain other reporting covenants set forth in Sections 7.1(a) and
7.1(f) of the Senior Credit Facility Agreement;
WHEREAS, pursuant to the Waiver Agreement, dated as of March 31, 2003
(the "Subordinated Credit Facility Waiver"), among WestPoint, its Subsidiaries
party to the Subordinated Credit Facility Agreement, Subordinated Credit
Facility Agent and such lenders under the Subordinated Credit Facility
Agreement as are required in order for such amendment to be effective and
binding upon all of the lenders thereunder, Subordinated Credit Facility Agent
and such lenders agreed, among other things, to waive, until June 10, 2003, the
compliance by WestPoint and its Subsidiaries party to the Subordinated Credit
Facility Agreement with (i) the Subordinated Credit Facility Covenants and (ii)
certain other reporting covenants set forth in Sections 6.1(a) and 6.1(f) of
the Subordinated Credit Facility Agreement;
WHEREAS, Borrower and WestPoint have advised Agent that, upon the
effectiveness of the Senior Credit Facility Waiver, Senior Credit Facility
Availability will be less than $75,000,000;
WHEREAS, Borrower has requested that Agent and Lenders make certain
amendments to the Loan Agreement and Agent and Lenders are willing to agree to
such amendments, subject to the terms and conditions contained herein; and
WHEREAS, the parties hereto desire to enter into this Amendment to
evidence and effectuate such amendments, subject to the terms and conditions
and to the extent set forth herein;
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used herein which are not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Loan Agreement or in the other Financing Agreements.
2. Delivery of Senior Credit Facility Amendment and Subordinated
Credit Facility Amendment. The reference to the date "April 30, 2003" set forth
in Section 1 of the Amendment Delivery Letter is hereby amended to refer to
"June 10, 2003". In no event shall the Senior Credit Facility Waiver or the
Subordinated Credit Facility Waiver be deemed to satisfy the requirements of
the Amendment Delivery Letter.
3. Delivery of Audited Financial Statements. Section
9.11(a)(ii)(A) is hereby amended to add at the end thereof the following:
"provided, that, for the fiscal year of WestPoint ending December 31, 2002,
such financial statements and other items shall be delivered on or before June
10, 2003".
4. Cash Dominion Period. Since the Senior Credit Facility
Availability will be less than $75,000,000 upon the effectiveness of the Senior
Credit Facility Waiver, each Transaction Party and Agent confirm that Agent
will exercise its rights under Section 6.8(c) of the Loan Agreement to notify
the depository bank at which the Concentration Account is maintained to remit
the funds received or deposited into such account to the Agent Payment Account
as a result of the occurrence of such event and that at such time as
Collections are being remitted from the Concentration Account to the Agent
Payment Account, such time shall constitute the commencement of a Cash Dominion
Period for all purposes under the Loan Agreement and the other Financing
Agreements.
5. Amendment Fee. In consideration of this Amendment, Borrower
shall pay to Agent (for the account of Lenders) an amendment fee in the amount
of $50,000 (the "Amendment Fee"), which shall be fully earned and due and
payable on the date hereof and which may be charged directly to the loan
account of Borrower.
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6. Representations, Warranties and Covenants. Each Transaction
Party represents, warrants and covenants with and to Agent and Lenders as
follows, which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof:
(a) this Amendment has been duly executed and delivered
by such Transaction Party and the agreements and obligations of such
Transaction Party contained herein constitute legal, valid and binding
obligations of such Transaction Party enforceable against it in accordance with
their respective terms; and
(b) no Default or Event of Default exists or has
occurred as of the date of this Amendment.
7. Conditions Precedent for Amendment. The amendments contained
herein shall be effective as of the date hereof, but only upon the satisfaction
of each of the following conditions precedent, in a manner satisfactory to
Agent:
(a) Agent shall have received this Amendment duly
authorized, executed and delivered by Borrower, WestPoint and the Required
Lenders;
(b) Agent shall have received a true, correct and
complete copy of the Senior Credit Facility Waiver, in form and substance
satisfactory to Agent, as duly authorized, executed and delivered by Senior
Credit Facility Agent and such lenders under the Senior Credit Facility
Agreement as are required in order for such amendment to be effective and
binding upon all of the lenders thereunder; and
(c) Agent shall have received a true, correct and
complete copy of the Subordinated Credit Facility Waiver, in form and substance
satisfactory to Agent, as duly authorized, executed and delivered by
Subordinated Credit Facility Agent and such lenders under the Subordinated
Credit Facility Agreement as are required in order for such amendment to be
effective and binding upon all of the lenders thereunder.
8. Effect of this Amendment. Except as modified pursuant hereto,
no other changes or modifications to the Financing Agreements are intended or
implied, and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
Effective Date. To the extent of conflict between the terms of this Amendment
and the other Financing Agreements, the terms of this Amendment shall control.
The Loan Agreement and this Amendment shall be read and construed as one
agreement.
9. Further Assurances. The parties hereto shall execute and
deliver such additional documents and take such additional action as may be
reasonably necessary or desirable to effectuate the provisions and purposes of
this Amendment.
10. Governing Law. The validity, interpretation and enforcement
of this Amendment and any dispute arising out of the relationship between the
parties hereto whether in contract, tort, equity or otherwise, shall be
governed by the internal laws of the State of Georgia but excluding any
principles of conflicts of law or other rule of law that would cause the
application of the law of any jurisdiction other than the laws of the State of
Georgia.
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11. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
12. Headings. The headings listed herein are for convenience only
and do not constitute matters to be construed in interpreting this Amendment.
13. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same agreement.
Delivery of an executed counterpart of this Amendment by telefacsimile shall be
equally as effective as delivery of an original executed counterpart of this
Amendment. Any party delivering an executed counterpart of this Amendment by
telefacsimile also shall deliver an original executed counterpart of this
Amendment but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on the day and year first written.
WPS RECEIVABLES CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
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Title: President
WESTPOINT XXXXXXX INC.,
as initial Servicer
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President-Finance
and Chief Financial Officer
AGREED:
CONGRESS FINANCIAL CORPORATION
(SOUTHERN), as Agent
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
