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SECOND AMENDMENT AGREEMENT
This Second Amendment Agreement, dated as of May 20, 1999 (this
"Agreement"), is among WESTPOINT XXXXXXX INC., a Delaware corporation (the
"Borrower"), WESTPOINT XXXXXXX (UK) LIMITED, WESTPOINT XXXXXXX (EUROPE)
LIMITED, each of the Banks signatories hereto, and NATIONSBANK, N.A., as
Administrative Agent (the "Agent").
RECITALS:
A. Pursuant to that certain Second Amended and Restated Credit Agreement,
dated as of June 9, 1998 among the Borrower, WestPoint Xxxxxxx (UK) Limited
and WestPoint Xxxxxxx (Europe) Limited (collectively, the "Foreign Borrowers"),
the lending and financial institutions party thereto (the "Original Banks"),
and the Agent, as amended by that certain letter agreement dated as of June 10,
1998 among the Borrower, the Foreign Borrowers, the Existing Banks, and the
Agent (as amended, the "Original Credit Agreement"), the Original Banks agreed
to make revolving loan and letter of credit facilities available to the
Borrower and the Foreign Borrowers.
B. Pursuant to that certain Amendment Agreement (the "First Amendment"),
dated as of July 31, 1998, by and among the Borrower, the Foreign Borrowers,
the Original Banks parties thereto, the Agent, and National Westminster Bank
PLC ("Natwest"), the Original Credit Agreement was amended to increase the
aggregate Revolving Committed amount from $550,000,000 to $575,000,000, and to
add Natwest as a Bank under the Original Credit Agreement (as amended by the
First Amendment, the "Existing Credit Agreement").
C. By separate letter agreements dated October 7, 1998 and March 16,
1999, the Borrower, the Foreign Borrowers, the Required Banks, and the Agent
have twice amended the definitions of the terms "Maximum Restricted Payment
Amount" and "Minimum Consolidated Net Worth". The Existing Credit Agreement is
deemed to include the amendments effected by these letter agreements.
D. The Borrower and the Foreign Borrowers have requested that the Banks
agree to amend further the Existing Credit Agreement to increase the aggregate
Revolving Committed Amount to $800,000,000 by increasing the Revolving
Commitment of certain consenting Banks.
NOW, THEREFORE, based upon the foregoing, and for good and valuable
consideration, the sufficiency and receipt of which is hereby acknowledged, the
parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Agreement, including its
preamble and recitals, have the following meanings:
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"Amended Credit Agreement" means the Existing Credit Agreement as
amended hereby.
"Effective Date" shall have the meaning ascribed to such term in
Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Agreement, including its preamble
and recitals, have the meanings provided in the Amended Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Effective Date, the
Existing Credit Agreement is hereby amended in accordance with this Part II.
Except as so amended, the Existing Credit Agreement shall continue in full force
and effect.
SUBPART 2.1 Amendment to Section 2.1(a). Section 2.1(a) of the Existing
Credit Agreement is amended to read in its entirety as follows:
2.1 REVOLVING LOANS.
(a) Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set
forth herein, each Bank severally agrees to make available to the
Borrower such Bank's Revolving Commitment Percentage (as set forth on
Schedule 2.1(a)) of revolving credit loans requested by the Borrower in
Dollars ("Revolving Loans") from time to time from the Closing Date
until the Maturity Date, or such earlier date as the Revolving
Commitments shall have been terminated as provided herein; provided,
however, that the sum of the aggregate principal amount of outstanding
Revolving Loans shall not exceed EIGHT HUNDRED MILLION DOLLARS
($800,000,000) (as such aggregate maximum amount may be reduced form
time to time as provided in Section 3.4, the "Revolving Committed
Amount"); provided, further, (i) with regard to each Bank individually,
such Bank's outstanding Revolving Loans shall not exceed such Bank's
Revolving Commitment, (ii) with regard to the Banks collectively, the
aggregate principal amount of outstanding Revolving Loans plus the
aggregate principal amount of Competitive Loans plus the Dollar Amount
of the aggregate outstanding principal amount of Foreign Currency
Loans, plus the aggregate principal amount of outstanding Swingline
Loans plus the Dollar Amount of LOC Obligations outstanding shall not
exceed the Revolving Committed Amount. Revolving Loans may consist of
Base Rate Loans or Eurocurrency Loans, or a combination thereof, as the
Borrower may request; provided, however, that no more than eight (8)
Eurocurrency Loans shall be outstanding under this Section 2.1 at any
time (it being understood that, for purposes hereof, Eurocurrency Loans
with different Interest Periods shall be considered as separate
Eurocurrency Loans, even if they begin on the same date,
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although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of
existing Interest Periods to constitute a new Eurocurrency Loan
with a single Interest Period). Revolving Loans may be repaid and
reborrowed in accordance with the provisions hereof.
SUBPART 2.2 Amendment to Schedule 2.1. Schedule 2.1 of the
Existing Credit Agreement is replaced in its entirety with a new Schedule 2.1 in
the form and content of Exhibit "A" attached to this Agreement and incorporated
herein by reference.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1 Effective Date. The amendments effected by this Agreement shall
be and become effective as of the date hereof when (i) all of the conditions set
forth in this Subpart 3.1 shall have been satisfied, (ii) the Required Banks,
the Borrower, and the Foreign Borrowers shall have duly executed counterparts of
this Agreement and provided original copies thereof to the Agent, and (iii) each
of the Banks whose Revolving Commitment has increased pursuant to the terms of
this Agreement shall have duly executed counterparts of this Agreement and
provided original copies thereof to the Agent.
SUBPART 3.1.1. Closing Certificate. The Agent shall have received
a certificate from the Borrower and the Foreign Borrowers certifying that
(i) no Default or Event of Default exists as of the Effective Date, and
(ii) the representations and warranties of the Borrower and the Foreign
Borrowers made in or pursuant to the Credit Documents are true in all
material respects on and as of the Effective Date.
SUBPART 3.1.2. Guarantors Consent. Each of the Guarantors shall
have executed the Consent included in the signature pages of this
Agreement, and the Agent shall have received such Consent executed by each
Guarantor.
SUBPART 3.1.3. Corporate Action. The Borrower shall deliver to
the Agent certified copies of all corporate action taken by each Credit
Party approving this Agreement and each of the documents executed and
delivered in connection herewith (including, without limitation, a
certificate setting forth the resolutions of the Board of Directors of each
Credit Party adopted in respect of the transactions contemplated by this
Agreement.)
SUBPART 3.1.4. Documentation. The Existing Bank and the Agent
shall have received all information, and such counterpart originals or such
certified or other copies of such originals, as they may reasonably
request, together with the legal opinion of counsel to the Borrower in form
and content reasonably satisfactory to the Agent and its counsel. All legal
matters incident to the transactions contemplated by this Agreement shall
be satisfactory to the counsel for the Agent.
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SUBPART 3.1.5. Amendment Fee. The Borrower shall pay to those Banks
increasing their respective Revolving Commitments pursuant to the Agreement
a fee equal to 1/2% of the increase in the amount of each such Bank's
Revolving Commitment.
PART IV
MISCELLANEOUS
SUBPART 4.1 Cross-References. References in this Agreement to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this
Agreement.
SUBPART 4.2 Instrument Pursuant to Existing Credit Agreement. This
Agreement is a document executed pursuant to the Existing Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the Existing Credit
Agreement.
SUBPART 4.3 Credit Documents. Each of the Borrower and the Foreign
Borrowers hereby confirms and agrees that the Credit Documents are, and shall
continue to be, in full force and effect, except as amended hereby, except
that, on and after the Effective Date, references in each Credit Document to
the "Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Existing Credit Agreement shall mean the Amended Credit
Agreement.
SUBPART 4.4. Representations and Warranties. Each of the Borrower and the
Foreign Borrowers hereby represents and warrants that (i) it has the requisite
corporate power and authority to execute, deliver and perform this Agreement,
(ii) it is duly authorized to, and has been authorized by all necessary
corporate action, to execute, deliver and perform this Agreement, (iii) it has
no claims, counterclaims, offsets, or defenses to the Credit Documents and the
performance of its obligations thereunder, (iv) the representations and
warranties contained in Section 6 of the Existing Credit Agreement are, subject
to the limitations set forth therein, true and correct in all material respects
on and as of the date hereof as though made on and as of such date (except for
those which expressly relate to an earlier date or those which relate to
specific schedules, the changes to which do not represent a Material Adverse
Effect), (v) no event of default under any other agreement, document or
instrument to which it is a party will occur as a result of the transactions
contemplated hereby, and (vi) as of the date of this Agreement, no Event of
Default or Defaults exists.
SUBPART 4.5. Costs and Expenses. The Borrower hereby agrees to pay on
demand all costs and expenses (including without limitation the reasonable fees
and expenses of counsel to the Agent) incurred by the Agent in connection with
the negotiation, preparation, execution, and delivery of this Agreement and the
enforcement or preservation of any rights and remedies of the Banks and the
Agent hereunder.
SUBPART 4.6. Counterparts, Effectiveness, Etc. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
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SUBPART 4.7. Captions. The captions in this Agreement are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope of this Agreement or any provision hereof.
SUBPART 4.8. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SUBPART 4.9. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the day and year
first above written.
THE BORROWER: WESTPOINT XXXXXXX INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
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Title: Executive Vice President-Finance
and Chief Financial Officer
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THE FOREIGN BORROWERS: WESTPOINT XXXXXXX (UK) LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
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Title: Director, Vice President &
Treasurer
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WESTPOINT XXXXXXX (EUROPE)
LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
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Title: Director, Vice President &
Treasurer
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THE BANKS: NATIONSBANK, N.A.,
individually in its capacity as a
Bank and in its capacity as
Agent and Trustee
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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[Signatures Continued]
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THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Customer Service Officer
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Relationship Manager
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
[Signatures Continued]
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SOCIETE GENERALE
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxx
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Title: Director
Head of SG - Dallas
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ABN AMRO BANK, N.V.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
By:
--------------------------
Name:
------------------------
Title:
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SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Senior Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Senior Vice President
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FLEET BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: SVP
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[Signatures Continued]
Second Amendment Agmt.
WestPoint Xxxxxxx Inc.
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AMSOUTH BANK
By: /s/ Xxxx Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxx Xxxxxx
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Title: Vice President
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
By:
----------------------------
Name:
--------------------------
Title:
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NATIONAL WESTMINSTER BANK
PLC
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Senior Corporate Manager
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[Signatures Continued]
