Exhibit 10.2
AMENDMENT
THIS AMENDMENT, dated as of May 30, 2003 (the "AMENDMENT"), to the
$165,000,000 Credit Agreement dated as of June 29, 2001 (as heretofore amended,
amended and restated and supplemented, the "CREDIT AGREEMENT") among WESTPOINT
XXXXXXX INC., a Delaware corporation, as Borrower, WESTPOINT XXXXXXX INC. I,
X.X. XXXXXXX & CO., INC., X.X. XXXXXXX ENTERPRISES, INC., ALAMAC HOLDINGS INC.,
WESTPOINT XXXXXXX STORES INC. and XXXXXXXXX INC. as Guarantors, the Lenders (as
defined herein), and DEUTSCHEBANK TRUST COMPANY AMERICAS (f/k/a BANKERS TRUST
COMPANY ("DEUTSCHEBANK") in its capacity as Agent (the "AGENT").
WITNESSETH:
WHEREAS, WestPoint Xxxxxxx Inc. (the "BORROWER") is the borrower under
the Credit Agreement;
WHEREAS, WestPoint Xxxxxxx Inc. I, X.X. Xxxxxxx & Co., Inc., X.X.
Xxxxxxx Enterprises, Inc., Almanac Holdings Inc., WestPoint Xxxxxxx Stores Inc.
and Xxxxxxxxx Inc. (collectively, the "GUARANTORS") are guarantors under the
Credit Agreement;
WHEREAS, the Borrower and the Guarantors are grantors under the
Collateral Security Agreement dated as of June 29, 2001 (the Borrowers and the
Guarantors being hereinafter referred to collectively as the "CREDIT PARTIES",
and each of them, a "CREDIT PARTY");
WHEREAS, in connection with the foregoing recitations, each of the
Lenders signatories hereto, holding in total a majority in amount of the Loans
under the Credit Agreement and thus comprising the Required Lenders, have
indicated their willingness, on the terms and conditions set forth below, to
appoint a successor Agent as more fully described herein;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and promises set forth herein which each agrees is sufficient
consideration for their respective agreements, and each intending to be legally
bound hereby, agree as follows:
Section 1. Defined Terms; References. Unless otherwise
specifically defined herein, each term used herein that is defined in the
Credit Agreement has the meaning assigned to such term in the Credit Agreement.
Section 2. Confirmation by Credit Parties of Obligations. The
Credit Parties acknowledge and agree, and represent and warrant to each of the
other signatories hereto, that (a) the aggregate principal amount of the
Advances under the Credit Agreement as of May 30, 2003 equals $165,000,000
(exclusive of any accrued and unpaid interest, fees, expenses and other amounts
that are chargeable or otherwise reimbursable under the Credit Agreement), (b)
the Lenders signing this Amendment hold Loans in the outstanding principal
amounts set forth underneath their signatures and (c) the Lenders signing this
Amendment constitute the "Required
Lenders" under the Credit Agreement. Accordingly, the Lenders signing this
Amendment are hereinafter referred to as the Required Lenders.
Section 3. Required Lenders Representation. Each Lender signing
this Amendment hereby represents and warrants to Wilmington Trust Company
("WTC") that it holds Loans in the outstanding principal amount set forth
underneath its signature.
Section 4. Appointment Of Successor Agent. In accordance with
Section 9.6 of the Credit Agreement, the Required Lenders hereby appoint, and
each Loan Party hereby approves, WTC, as successor to DeutscheBank as Agent (in
such capacity, the "SUCCESSOR AGENT"), and WTC by its execution and delivery of
this Amendment agrees to become Successor Agent. The appointment of WTC as
Successor Agent shall be effective immediately upon (1) the effectiveness of
this Amendment and (2) the payment of the first annual Agent's fee provided in
Section 5 below in the amount of $60,000. WTC shall thereupon succeed to and
become vested with all of the rights, powers, privileges and duties of Agent,
including without limitation the indemnities set forth in the Credit Agreement.
Section 5. Agent's Fee. The Credit Parties and the Required
Lenders hereby amend the Credit Agreement by inserting a new Section 9.6A to
provide as follows:
9.6A ANNUAL AGENT'S FEE. Commencing on May 31, 2003, and in addition
to any amounts otherwise payable by the Credit Parties to the Agent
hereunder, the Credit Parties shall pay to the Agent in addition a
non-refundable annual fee of $60,000, payable for each calendar year
in advance no later than the first Business day after May 31 of each
year until all Obligations under the Credit Agreement have been paid
in full.
Section 6. Retention of Counsel. The Required Lenders have
previously retained Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP ("XXXXXX XXXXX") as
their counsel, and the Credit Parties have previously funded a $100,000
retainer to Xxxxxx Xxxxx towards the payment of its fees and expenses as
counsel to such Lenders. The Required Lenders hereby release Xxxxxx Xxxxx as
their counsel and request WTC to retain, and WTC agrees to retain, Xxxxxx Xxxxx
as counsel to WTC as Successor Agent. Xxxxxx Xxxxx hereby agrees to act as such
counsel. The Credit Parties agree to pay Xxxxxx Levin's fees and expenses as
counsel to the Successor Agent pursuant to Section 9.01 of the Credit
Agreement. The Required Lenders, the Credit Parties and Xxxxxx Xxxxx agree that
any amount of the retainer remaining after application to fees and expenses
incurred to date shall be held and applied to cover the fees and expenses of
Xxxxxx Xxxxx as counsel to the Successor Agent.
Section 7. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 8. Counterparts. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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Section 9. Further Assurances. Each Credit Party and WTC shall
promptly take such actions as each of them deems necessary or desirable to give
effect to the agreements set forth herein.
Section 10. Provisions Governing Agents. With respect to any
actions taken or omitted to be taken as Agent prior to its discharge from such
capacity, DeutscheBank shall be entitled to the full benefits of the applicable
provisions of the Loan Documents.
Section 11. Effectiveness. This Amendment shall become effective
(and shall be binding on all Lenders) as of the date hereof when the same shall
have been executed by the Credit Parties, the Required Lenders and WTC, and
delivered to each of the signatories and to DeutscheBank.
Section 12. Guarantors. Each Guarantor hereby affirms and ratifies
each and every one of its obligations under its Guaranty and under the Credit
Agreement after giving effect to the amendments and agreements set forth
herein.
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IN WITNESS WHEREOF, the parties hereto, each intending to be legally
bound, have caused this Amendment to be duly executed as of the date first
above written.
BORROWER: WESTPOINT XXXXXXX INC.,
a Delaware corporation
/s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
and Treasurer
GUARANTORS: WESTPOINT XXXXXXX INC. I
/s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Treasurer
X.X. XXXXXXX & CO., INC.
/s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Treasurer
X.X. XXXXXXX ENTERPRISES, INC.
/s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Treasurer
ALAMAC HOLDINGS INC.
/s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Treasurer
WESTPOINT XXXXXXX STORES INC.
/s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Treasurer
XXXXXXXXX INC.
/s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
Treasurer
SUCCESSOR AGENT: WILMINGTON TRUST
COMPANY
/s/ Xxxxx X. XxXxxxxx
-------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Authorized Signer
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LENDER: SATELLITE ASSET SENIOR INCOME FUND, LLC
By: Satellite Asset Management, L.P.
Its Investment Manager
/s/ Xxxx Xxxxxxx
---------------------------------------
Name:
Title: Principal
Outstanding Principal Amount
of Loans Held as of the
date hereof: $63,500,000
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LENDER: THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
/s/ Xxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President
Outstanding Principal Amount
of Loans Held as of the
date hereof: $30,000,000
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XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP
By: /s/ Xxxxxx Xxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx Xxxxx
PARTNER
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