EXHIBIT 99.2
EXECUTION VERSION
THIRD AMENDMENT TO POST-PETITION CREDIT AGREEMENT
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This THIRD AMENDMENT TO POST-PETITION CREDIT AGREEMENT, dated as of
September 25, 2003 (this "Amendment"), is made among WESTPOINT XXXXXXX INC., a
Delaware corporation and Chapter 11 debtor-in-possession ("WPS"), WESTPOINT
XXXXXXX INC. I, a Delaware corporation and Chapter 11 debtor-in-possession
("WPSI"), X. X. XXXXXXX & CO., INC., a Delaware corporation and Chapter 11
debtor-in-possession ("JPS"), X. X. XXXXXXX ENTERPRISES, INC., a Delaware
corporation and Chapter 11 debtor-in-possession ("JPSE"), and WESTPOINT XXXXXXX
STORES INC., a Georgia corporation and Chapter 11 debtor-in-possession ("WPSS")
(WPS, WPSI, JPS, JPSE and WPSS each is referred to hereinafter as a "Borrower"
and collectively as the "Borrowers"), the financial institutions from time to
time parties to the Credit Agreement (as hereinafter defined) (such financial
institutions, together with their respective successors and assigns, are
referred to hereinafter each individually as a "Lender" and collectively as the
"Lenders"), BANK OF AMERICA, N.A., in its capacity as administrative and
collateral agent for the Lenders (together with its successors in such capacity,
the "Administrative Agent"), and WACHOVIA BANK, NATIONAL ASSOCIATION, in its
capacity as syndication agent for the Lenders (in such capacity, the
"Syndication Agent" and collectively with Administrative Agent, the "Agents").
RECITALS:
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Borrowers, Lenders and Agents are parties to a certain Post-Petition
Credit Agreement dated as of June 2, 2003, as amended by a First Amendment to
Post-Petition Credit Agreement dated as of June 26, 2003, and a Second Amendment
to Post-Petition Credit Agreement and First Amendment to Security Agreement
dated as of September 25, 2003 (as so amended, the "Credit Agreement"), pursuant
to which Lenders have made certain revolving credit loans to and issued various
letters of credit for Borrowers.
The parties desire to amend the Credit Agreement in certain respects
as hereinafter set forth, including, without limitation, (i) by amending the
definition of "Applicable Margins" appearing in Annex A to the Credit Agreement
as hereinafter set forth in order to correct a scrivener's error and to reflect
the parties' original intent with respect to the pricing for the DIP Facility,
(ii) by amending the EBITDA covenant set forth in the Credit Agreement, and
(iii) by establishing a subfacility under the Credit Agreement as hereinafter
set forth for the creation of bankers' acceptances by the Letter of Credit
Issuer for the account of one or more Borrowers.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended by:
(a) adding the following new definitions to Annex A to the Credit
Agreement in the appropriate alphabetical order:
"2003 Restructuring Plan" means the restructuring plan presented
to the Lenders on September 16, 2003.
"2003 Plant Shutdown Costs" means the following non-recurring
charges, more specifically described in the 2003 Restructuring Plan,
in an aggregate amount not to exceed $84,290,000 ($54,062,000 after
tax), that are incurred, accrued or reserved by the Borrowers or their
consolidated Subsidiaries during Fiscal Years 2003 through 2006 in
connection with the closing and consolidation of certain facilities:
(i) direct inventory write-offs and/or related increases in inventory
reserves; (ii) write-offs of fixed assets and non-capitalized
relocation charges; (iii) write-offs of intangibles related to
impaired assets; and (iv) without duplication, relocation, severance,
unabsorbed overhead and other related costs.
"Acceptance" means a banker's acceptance created by the Letter of
Credit Issuer pursuant to Section 1.5 for the account of one or more
Borrowers.
"Acceptance Obligations" means, on any date, all liabilities of
the Borrowers on or with respect to Acceptances, whether or not any
such liability is contingent or unmatured, including the sum of (a)
the aggregate amount of all unpaid reimbursement obligations in
respect of Acceptances and (b) the aggregate face amount of all
unmatured Acceptances then outstanding.
"Discount Rate" means, with respect to any Acceptance at any
time, the bid rate in effect at the Letter of Credit Issuer at such
time (as determined by the Letter of Credit Issuer in its sole
discretion) for commercial drafts or bills eligible for discount by
Federal Reserve Banks in the same face amount, with the same maturity,
and of the same type, as such Acceptance.
"Draft" has the meaning specified in Section 1.5(b).
"Eligible Acceptance" means an Acceptance (a) for which the
Letter of Credit Issuer is not required to maintain reserves under
Regulation D of the Federal Reserve Board or under any applicable law,
and (b) which, in the sole judgment of the Letter of Credit Issuer, is
eligible for discount by Federal Reserve Banks.
"LC/BA Availability Amount" means, on any date, an amount equal
to $75,000,000 minus the sum of (a) the aggregate undrawn amount of
all Letters of Credit outstanding on such date plus, without
duplication, (b) the aggregate unpaid reimbursement obligations on
such date with respect to all Letters of Credit, plus (c) the
aggregate amount of all Acceptance Obligations on such date.
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"LC/BA Subfacility" means $75,000,000.
"Next Availability Test Period" has the meaning specified in
Section 7.24.
(b) deleting clause (h) of the definition of "Adjusted Net Earnings
from Operations" appearing in Annex A to the Credit Agreement and by
substituting in lieu thereof the following new clause (h):
(h) without duplication, those Plant Shutdown Costs that have not
been incurred, accrued or reserved as of the Petition Date and the
2003 Plant Shutdown Costs; and
(c) deleting the definition of "Aggregate Revolver Outstandings"
appearing in Annex A to the Credit Agreement and by substituting in lieu thereof
the following new definition:
"Aggregate Revolver Outstandings" means, at any date of
determination: the sum of (a) the unpaid balance of Revolving Loans,
(b) the aggregate amount of Pending Revolving Loans, (c) one hundred
percent (100%) of the aggregate undrawn face amount of all outstanding
Letters of Credit, (d) the aggregate amount of any unpaid
reimbursement obligations in respect of Letters of Credit and (e) the
aggregate amount of all Acceptance Obligations on such date.
(d) amending the definition of "Applicable Margins" appearing in
Annex A to the Credit Agreement by:
(i) deleting the percentage "0.625%" appearing in clause (i)
thereof and by substituting in lieu thereof the percentage "0.75%";
and
(ii) deleting the percentage "0.50%" appearing in clause (iii)
thereof and by substituting in lieu thereof the percentage "0.625%".
(e) deleting the definition of "Letter of Credit Subfacility"
appearing in Annex A to the Credit Agreement and by substituting the phrase
"LC/BA Subfacility " for the phrase "Letter of Credit Subfacility" wherever it
appears in the Credit Agreement.
(f) deleting the last sentence of the definition of "Obligations"
appearing in Annex A to the Credit Agreement and by substituting in lieu thereof
the following new last sentence:
"Obligations" includes, without limitation, (a) all debts,
liabilities, and obligations now or hereafter arising from or in
connection with Letters of Credit, (b) all Acceptance Obligations, (c)
Loans, and (d) all debts, liabilities and obligations now or hereafter
arising from or in connection with Bank Products.
(g) deleting the definition of "Overadvance Condition" appearing in
Annex A to the Credit Agreement and by substituting in lieu thereof the
following new definition:
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"Overadvance Condition" means and shall be deemed to exist at any
time (a) the sum of (i) the aggregate outstanding principal amount of
Revolving Loans, (ii) one hundred percent (100%) of the aggregate
undrawn face amount of all outstanding Letters of Credit, (iii) the
aggregate amount of all unpaid reimbursement obligations in respect of
Letters of Credit, and (iv) the aggregate amount of all Acceptance
Obligations exceeds (b) the lesser of (i) the Maximum Revolver Amount
and (ii) the Borrowing Base.
(h) deleting the definition of "Unused Letter of Credit Subfacility"
appearing in Annex A to the Credit Agreement and by substituting the phrase
"LC/BA Availability Amount" for the phrase "Unused Letter of Credit Subfacility"
wherever it appears in the Credit Agreement.
(i) deleting the second sentence of Section 1.1 in its entirety and
by substituting in lieu thereof the following new sentence:
The DIP Facility shall be composed of a revolving line of credit
consisting of Revolving Loans, Letters of Credit and Acceptances as
described herein.
(j) further amending Article 1 by adding at the end thereof the
following new Sections:
1.5. Acceptance Facility.
(a) Subject to the terms and conditions of this Agreement,
the Administrative Agent agrees to cause the Letter of Credit
Issuer to create bankers' acceptances for the account of one or
more Borrowers by accepting time drafts drawn by beneficiaries
under Letters of Credit in accordance with the terms thereof. The
aggregate face amount of all Acceptances at any one time
outstanding shall not exceed the LC/BA Subfacility; provided,
however, that (i) the face amount of any Acceptance created
pursuant to this Section 1.5(a) shall not exceed the LC/BA
Availability Amount and (ii) the face amount of any Acceptance
created pursuant to this Section 1.5(a), plus all commissions due
from the Borrowers in connection with the creation thereof, shall
not exceed Availability, in each case as determined at the time
of such creation.
(b) Each draft (a "Draft") accepted by the Letter of Credit
Issuer in accordance with Section 1.5(a) shall (a) be dated the
date of acceptance of such Draft by the Letter of Credit Issuer,
(c) mature on a Business Day not less than one (1) or more than
six (6) months after the date such Draft is accepted by the
Letter of Credit Issuer, and (c) have a face amount not less than
the amount of the drawing under the Letter of Credit for which
such Acceptance is so being created, payable in Dollars.
1.6. Acceptance Commission. The Borrowers jointly and severally agree
to pay to the Administrative Agent, for the account of the Lenders, in
accordance with their respective Pro Rata Shares, an acceptance commission,
with respect to each Acceptance created by the Letter of Credit Issuer
hereunder, on the face amount of such Acceptance, for the period from the
date of such Acceptance to the date of its maturity, at a rate per annum
equal to the Applicable Margin in effect from time to time for LIBOR
Revolving Loans (with a minimum fee of $125), payable in full on the date
of the creation of such Acceptance. The acceptance commission shall be
computed on the basis of a 360-day year and the actual number of days
elapsed.
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1.7. Discount. The Letter of Credit Issuer agrees to discount any
Draft issued in accordance with the terms of a Letter of Credit if
requested to do so by the beneficiary of such Letter of Credit. The
discount rate with respect to such discounting shall be the Discount Rate
in effect at the time of creation of such Acceptance. In the event the
Discount Rate is for account of one or more Borrowers, the amount of the
discount is to be collected from the Borrowers on the date of the creation
and discounting of the Acceptance. The Letter of Credit Issuer may at any
time or from time to time sell, rediscount or otherwise dispose of such
Acceptance.
1.8. Termination of the Acceptance Commitment. Notwithstanding
anything to the contrary herein, if any of the following events shall
occur:
(a) There is a determination made by the Letter of Credit Issuer
or by any regulatory body (including, without limitation, the staff of
any Federal Reserve Bank), or there is a change in, or change in
interpretation of, any applicable rule or regulation, to the effect
that any Acceptance created hereunder is not, or would not be, an
Eligible Acceptance; or
(b) Any restriction is imposed on the Letter of Credit Issuer,
including any change in acceptance limits imposed on the Letter of
Credit Issuer which would prevent the Letter of Credit Issuer from
creating Acceptances;
then the Administrative Agent may, by notice to the Borrowers in
writing or by telephone (confirmed in writing), terminate the
obligation of the Administrative Agent to cause the Letter of Credit
Issuer to create Acceptances hereunder in whole or in part, effective
on the date on which the Administrative Agent gives such notice.
1.9. Payments of Acceptance Obligations. The Borrowers are jointly and
severally obligated, and hereby jointly and severally absolutely and
unconditionally agree, to pay to the Administrative Agent the face amount
of each Acceptance created by the Administrative Agent hereunder on the
maturity date of such Acceptance. The Borrowers jointly and severally agree
to pay interest on any and all amounts required to be paid pursuant to the
preceding sentence from and after the due date thereof until payment in
full, payable on demand, at an annual rate of interest equal to the Base
Rate plus two percent (2%) per annum. The maturing of any Acceptance shall
constitute a request by the Borrowers to the Administrative Agent for a
Borrowing of a Base Rate Revolving Loan in the amount equal to the face
amount of such Acceptance. The Funding Date with respect to such Borrowing
shall be the maturity date of such Acceptance.
1.10 Participations in Acceptance Obligations.
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(a) Purchase of Participations. Immediately upon the creation of
any Acceptance in accordance with Section 1.5(a), each Lender shall be
deemed to have irrevocably and unconditionally purchased and received
without recourse or warranty, an undivided interest and participation
equal to such Lender's Pro Rata Share of the face amount of such
Acceptance (including all obligations of the Borrowers with respect
thereto, and any security therefore or guaranty pertaining thereto).
(b) Sharing of Reimbursement Obligation Payments. Whenever the
Administrative Agent receives a payment from the Borrowers on account
of reimbursement obligations in respect of an Acceptance as to which
the Administrative Agent has previously received for the account of
the Letter of Credit Issuer thereof payment from a Lender, the
Administrative Agent shall promptly pay to such Lender such Lender's
Pro Rata Share of such payment from the Borrowers. Each such payment
shall be made by the Administrative Agent on the next Settlement Date.
(c) Documentation. Upon the request of any Lender, the Letter of
Credit Issuer shall report to the Lenders the aggregate face amount of
all Acceptances then outstanding and such other information concerning
the Acceptances as such Lender shall reasonably request. Other than as
set forth in this subsection (c), the Letter of Credit Issuer shall
have no duty to notify the Lenders regarding the creation or other
matters regarding Acceptances created hereunder.
(d) Obligations Irrevocable. The obligations of each Lender to
make payments to the Administrative Agent with respect to any
Acceptance or with respect to their participation therein or with
respect to the Revolving Loans made as a result of the maturing of any
Acceptance and the obligations of the Borrowers for whose account the
Acceptance was created to make payments to the Administrative Agent,
for the account of the Lenders, shall be irrevocable and shall not be
subject to any qualification or exception whatsoever, including any of
the following circumstances:
(i) any lack of validity or enforceability of any Draft,
this Agreement or any of the other DIP Financing Documents;
(ii) the existence of any claim, setoff, defense or other
right which a Borrower may have at any time against the holder of
any Draft, any Lender, the Letter of Credit Issuer or any other
Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transactions;
(iii) any Draft proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the DIP
Financing Documents;
(v) any non-application or misapplication of the proceeds of
an Acceptance;
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(vi) the occurrence of any Default or Event of Default; or
(vii) the failure of the Borrowers to satisfy the applicable
conditions precedent set forth in Article 8.
1.11. Additional Costs. Without limitation of any other provision
hereof, if any Acceptance created hereunder is not, for any reason beyond
the control of the Letter of Credit Issuer, an Eligible Acceptance at the
time of its creation, the Borrowers shall, upon demand by the Letter of
Credit Issuer, pay to the Letter of Credit Issuer additional amounts
sufficient to indemnify the Letter of Credit Issuer against any additional
costs, as determined by the Letter of Credit Issuer, incurred by the Letter
of Credit Issuer (including costs resulting from reserve requirements, or
premium liability to the Federal Deposit Insurance Corporation or a higher
discount rate) in connection with such Acceptance resulting from such
Acceptance not being an Eligible Acceptance.
1.12 Indemnification; Assumption of Risk; Exoneration.
(a) Indemnification. In addition to amounts payable as elsewhere
provided in this Agreement, the Borrowers agree, jointly and
severally, to protect, indemnify, defend, pay and save the Lenders and
the Administrative Agent harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) which the Administrative Agent
or any Lender (other than a Lender in its capacity as Letter of Credit
Issuer) may incur or be subject to as a consequence, direct or
indirect, of the creation of any Acceptance. The Borrowers'
obligations under this Section shall survive payment of all of the
Obligations and termination of the Commitments.
(b) Assumption of Risk by the Borrowers. As among the Borrowers,
the Lenders, the Administrative Agent and the Letter of Credit Issuer,
the Borrowers assume all risks of the acts and omissions of, or misuse
of any of the Acceptances by the respective holders of such
Acceptances.
(c) Exoneration. Without limiting the foregoing, no action or
omission whatsoever by the Administrative Agent or any Lender relative
to any Acceptance (excluding any Lender in its capacity as a Letter of
Credit Issuer) shall result in any liability of the Administrative
Agent or any Lender to any Borrower, or relieve the Borrowers of any
of their obligations hereunder to any such Person.
1.13. Maturity Date of Acceptances Past Termination Date; Supporting
Letter of Credit; Cash Collateral. If any Acceptances remain outstanding
upon the termination of this Agreement, then upon such termination the
Borrowers shall deposit with the Administrative Agent, for the ratable
benefit of the Administrative Agent and the Lenders, with respect to each
Acceptance then outstanding, as the Administrative Agent shall specify,
either (i) a Supporting Letter of Credit in form and substance satisfactory
to the Administrative Agent, issued by an issuer satisfactory to the
Administrative Agent in an amount equal to the face amount of such
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Acceptance, under which Supporting Letter of Credit the Administrative
Agent is entitled to draw amounts necessary to reimburse the Administrative
Agent and the Lenders for payments to be made by the Administrative Agent
and the Lenders upon presentment of such Acceptance or (ii) cash collateral
in an amount equal to the face amount of such Acceptance, which the
Administrative Agent is entitled to apply as necessary to reimburse the
Administrative Agent and the Lenders for payments to be made by the
Administrative Agent and the Lenders upon presentment of such Acceptance.
(k) deleting the first sentence of Section 3.5 in its entirety and by
substituting in lieu therof the following new sentence:
At the election of the Administrative Agent, all payments of
principal, interest, reimbursement obligations in connection with
Acceptances, Letters of Credit and Credit Support for Letters of
Credit, fees, premiums, reimbursable expenses and other sums payable
hereunder, may be paid from the proceeds of Revolving Loans made
hereunder.
(l) deleting the second sentence of Section 3.6 in its entirety and
by substituting in lieu thereof the following new sentence:
All payments shall be remitted to the Administrative Agent and
all such payments not relating to principal or interest of specific
Loans, or not constituting payment of specific fees, and all proceeds
of Accounts or other Collateral received by the Administrative Agent,
shall be applied, ratably, subject to the provisions of this
Agreement, first, to pay any fees, commissions, indemnities or expense
reimbursements then due to the Administrative Agent from the
Borrowers; second, to pay any fees or expense reimbursements then due
to the Lenders from the Borrowers; third, to pay interest due in
respect of all Loans, including Non-Ratable Loans and Agent Advances;
fourth, to pay or prepay principal of the Non-Ratable Loans and Agent
Advances; fifth, to pay or prepay principal of the Revolving Loans
(other than Non-Ratable Loans and Agent Advances) and unpaid
reimbursement obligations in respect of Letters of Credit and
Acceptances; sixth, to pay an amount to the Administrative Agent equal
to the aggregate undrawn face amount of all outstanding Letters of
Credit and the aggregate amount of all outstanding Acceptance
Obligations to be held as cash collateral for such Obligations; and
seventh, to the payment of any other Obligation, including any amounts
relating to Bank Products due to the Administrative Agent or any
Lender by the Borrowers.
(m) deleting Sections 7.23 and 7.24 in their entireties and by
substituting in lieu thereof the following new Sections 7.23 and 7.24:
7.23 EBITDA. The Borrowers and their Subsidiaries, on a
consolidated basis, shall be required to have EBITDA for each
specified period set forth below of not less than the amount set forth
below opposite each such specified period:
Period EBITDA
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The period of four (4) consecutive Fiscal Months $40,000,000
ending on the last day of the Fiscal Month of
September, 2003
The period of seven (7) consecutive Fiscal Months $65,000,000
ending on the last day of the Fiscal Month of
December, 2003
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The period of ten (10) consecutive Fiscal Months $88,000,000
ending on the last day of the Fiscal Month of March,
2004
The period of four (4) consecutive Fiscal Quarters $101,000,000
ending on the last day of the Fiscal Month of June,
2004
The period of four (4) consecutive Fiscal Quarters $106,000,000
ending on the last day of the Fiscal Month of
September, 2004
Each period of four (4) consecutive Fiscal Quarters $104,000,000
ending on or after the last day of the Fiscal Month
of December, 2004
7.24 Minimum Availability. If EBITDA of the Borrowers and their
Subsidiaries, on a consolidated basis, for any specified period set
forth below is less than the amount set forth below opposite such
specified period, then the Borrowers shall not permit Availability at
any time during the Next Availability Test Period to be less than (i)
$75,000,000, if the Next Availability Test Period commences on or
before December 31, 2003, or (ii) $100,000,000, if the Next
Availability Test Period commences after December 31, 2003. For the
purposes of this Section 7.24, "Next Availability Test Period" shall
mean, with respect to any specified period set forth below, the period
commencing on the date the consolidated monthly Financial Statements
of the Borrowers and their consolidated Subsidiaries and the related
compliance certificate in respect of the last Fiscal Month included in
such specified period are actually delivered by the Borrowers to the
Administrative Agent and ending on the date the consolidated monthly
Financial Statements and related compliance certificate for the next
succeeding Fiscal Month are required to be delivered to the
Administrative Agent, in each case pursuant to Sections 5.2(b) and (e)
hereof.
Period EBITDA
------ ------
The period of four (4) consecutive Fiscal Months $42,000,000
ending on the last day of the Fiscal Month of
September, 2003
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The period of five (5) consecutive Fiscal Months $53,000,000
ending on the last day of the Fiscal Month of
October, 2003
The period of six (6) consecutive Fiscal Months $64,000,000
ending on the last day of the Fiscal Month of
November, 2003
The period of seven (7) consecutive Fiscal $74,000,000
Months ending on the last day of the Fiscal
Month of December, 2003
The period of eight (8) consecutive Fiscal $83,000,000
Months ending on the last day of the Fiscal
Month of January, 2004
The period of nine (9) consecutive Fiscal Months $92,000,000
ending on the last day of the Fiscal Month of
February, 2004
The period of ten (10) consecutive Fiscal Months $100,000,000
ending on the last day of the Fiscal Month of
March, 2004
The period of eleven (11) consecutive Fiscal $107,000,000
Months ending on the last day of the Fiscal
Month of April, 2004
The period of twelve (12) consecutive Fiscal $115,000,000
Months ending on the last day of each of the
Fiscal Months of May and June, 2004
The period of twelve (12) consecutive Fiscal $119,000,000
Months ending on the last day of each of the
Fiscal Months of July and August, 2004
Each period of twelve (12) consecutive Fiscal $120,000,000
Months ending on or after the last day of the
Fiscal Month of September, 2004
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(n) deleting Section 7.34 in its entirety and by substituting in lieu
thereof the following new Section 7.34:
7.34 Shutdown Costs. The Borrowers shall not incur (a) after
the Petition Date, any Plant Shutdown Costs, in cash, in an
aggregate amount in excess of $8,500,000, or (b) any 2003 Plant
Shutdown Costs, in cash, in an aggregate amount in excess of
$28,737,000.
(o) amending Sections 8.2 and 8.3 by inserting immediately after the
phrase "to issue any Letter of Credit" wherever it appears therein, the phrase
"or to create Acceptances".
(p) amending Section 9.2(a) by:
(i) deleting clause (iii) of the first sentence of Section
9.2(a) and by substituting in lieu thereof the following new
clause (iii):
(iii) restrict or refuse to provide Credit Support or
otherwise cause the issuance of Letters of Credit or to
cause the creation of Acceptances;
(ii) amending clause (C) of the second sentence of Section
9.2(a) by inserting immediately after the reference to "Letters
of Credit" appearing therein, the phrase "and the aggregate
amount of all Acceptance Obligations."
(q) amending Section 12.16(d) by inserting immediately after each
reference to "Letter of Credit" appearing therein, the phrase "or Acceptance."
3. RATIFICATION AND REAFFIRMATION. Borrowers hereby ratify and
reaffirm the Obligations, each of the DIP Financing Documents and all of
Borrowers' covenants, duties, indebtedness and liabilities under the DIP
Financing Documents.
4. REPRESENTATIONS AND WARRANTIES. Borrowers represent and warrant to
Agents and Lenders, to induce Agents and Lenders to enter into this Amendment,
that the execution, delivery and performance of this Amendment have been duly
authorized by all requisite corporate action on the part of Borrowers and this
Amendment has been duly executed and delivered by Borrowers; and all of the
representations and warranties made by Borrowers in the Credit Agreement are
true and correct on and as of the date hereof.
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5. AMENDMENT FEE; EXPENSES OF ADMINISTRATIVE AGENT. In consideration
of the Agents' and the Lenders' willingness to enter into this Amendment and
modify the terms of the Loan Agreement as set forth herein, Borrowers jointly
and severally agree to pay to the Administrative Agent, for the account of the
Lenders, in accordance with their respective Pro Rata Shares, an amendment fee
in the amount of $450,000 in immediately available funds on the date of entry by
the Court of an order approving the terms of this Amendment, which fee is earned
on the date hereof and is not subject to refund or rebate of any kind
whatsoever. Additionally, the Borrowers jointly and severally agree to pay, on
demand, all costs and expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and effectiveness of
this Amendment and any other documents or instruments executed pursuant hereto
and any and all amendments, modifications, and supplements thereto, including,
without limitation, the reasonable costs and fees of the Administrative Agent's
legal counsel and any taxes or expenses associated with or incurred in
connection with any instrument or agreement referred to herein or contemplated
hereby.
6. EFFECTIVENESS. This Amendment shall become effective as of June 2,
2003, upon entry by the Court of an order approving the terms of this Amendment
and upon receipt by the Administrative Agent of (a) the amendment fee described
in Section 5 hereof, and (b) the following documents, each of which shall be in
form and substance satisfactory to the Administrative Agent and the Majority
Lenders:
(i) at least 12 original counterparts of this Amendment, duly
executed and delivered by the Borrowers, the Majority Lenders and the
Administrative Agent; and
(ii) a copy of each Borrower's resolutions, certified as true and
complete by the corporate secretary or assistant secretary of such Borrower,
which resolutions shall authorize such Borrower's execution, delivery and
performance of its obligations under this Amendment and each amendment to the
Credit Agreement heretofore executed and delivered by the Borrowers.
7. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of New York.
8. COURT APPROVAL. Each of the parties hereby agrees to pursue
diligently and promptly Court approval of this Amendment.
9. NO NOVATION, ETC. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Credit Agreement or any of the other DIP Financing Documents, each of which
shall remain in full force and effect. This Amendment is not intended to be, nor
shall it be construed to create, a novation or accord and satisfaction.
10. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have entered into this Amendment on
the date first above written.
BORROWERS:
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WESTPOINT XXXXXXX INC.,
a Delaware corporation
By:____________________________________
Name:_______________________________
Title:______________________________
WESTPOINT XXXXXXX INC. I,
a Delaware corporation
By:____________________________________
Name:_______________________________
Title:______________________________
X.X. XXXXXXX & CO., INC.,
a Delaware corporation
By:____________________________________
Name:______________________________
Title:_____________________________
X.X. XXXXXXX ENTERPRISES, INC.,
a Delaware corporation
By:____________________________________
Name:_______________________________
Title:______________________________
WESTPOINT XXXXXXX STORES INC.,
a Georgia corporation
By:____________________________________
Name:_______________________________
Title:______________________________
AGENTS:
-------
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_________________________________
Name:____________________________
Title:___________________________
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
By:_________________________________
Name:____________________________
Title:___________________________
LENDERS:
--------
BANK OF AMERICA, N.A.
By:_________________________________
Name:____________________________
Title:___________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:____________________________
Title:___________________________
WHITEHALL BUSINESS CREDIT CORPORATION
By:__________________________________
Name:_____________________________
Title:____________________________
PNC BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:____________________________
Title:___________________________
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By:_________________________________
Name:____________________________
Title:___________________________
XXXXX FARGO FOOTHILL, LLC
By:_________________________________
Name:____________________________
Title:___________________________
ORIX FINANCIAL SERVICES, INC.
By:_________________________________
Name:____________________________
Title:___________________________
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By:___________________________________
Name:______________________________
Title:_____________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By:____________________________________
Name:_______________________________
Title:______________________________
AMSOUTH BANK
By:______________________________
Name:_________________________
Title:________________________
FLEET CAPITAL CORPORATION
By:________________________________
Name:___________________________
Title:__________________________
