Exhibit 10.6
FIRST AMENDMENT TO POST-PETITION CREDIT AGREEMENT
This FIRST AMENDMENT TO POST-PETITION CREDIT AGREEMENT, dated June 26,
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
Borrowers, Lenders and Agents are parties to a certain Post-Petition
Credit Agreement dated as of June 2, 2003, (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 as hereinafter set
forth.
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. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended by deleting in its entirety from Annex A of the Credit Agreement the
definition of "Eligible Assignee" and by substituting in lieu thereof the
following new definition:
"Eligible Assignee" means (a) a commercial bank, commercial
finance company, fund or other asset based lender, having total assets
in excess of $100,000,000 that is engaged in making, purchasing or
otherwise investing in commercial loans in the Ordinary Course of
Business of such Person and which shall represent to the satisfaction
of the Administrative Agent, in its reasonable discretion,
that such Person has the immediate financial resources and functional
capability of performing all actions required of a Lender pursuant to
the DIP Financing Documents, including funding and indemnification
requirements; (b) any Lender listed on the signature page of this
Agreement; (c) any Affiliate of a Lender; and (d) if an Event of
Default has occurred and is continuing, any Person reasonably
acceptable to the Administrative Agent; provided, however, in no event
shall any Person that is a lender or agent under the Second Priority
Pre-Petition Loan Documents at the time of the proposed assignment
qualify as an Eligible Assignee.
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.
5. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be
effective upon acceptance by Agents and Lenders (notice of which acceptance is
hereby waived), whereupon the same shall be governed by and construed in
accordance with the internal laws of the State of New York.
6. 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.
[Remainder of page intentionally left blank.]
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7. 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.
IN WITNESS WHEREOF, the parties have entered into this Amendment on
the date first above written.
BORROWERS:
WESTPOINT XXXXXXX INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Title: Senior Vice President-Finance
and Chief Financial Officer
WESTPOINT XXXXXXX INC. I,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Title: Vice President &
Assistant Treasurer
X.X. XXXXXXX & CO., INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Title: President
X.X. XXXXXXX ENTERPRISES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Title: Vice President &
Assistant Treasurer
WESTPOINT XXXXXXX STORES INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President
[Signatures continue on following page.]
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AGENTS:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxx Xxxxxx
------------------------------------
Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
By: /s/ X. X. Xxxxxxxx
------------------------------------
Vice President
LENDERS:
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ X. X. Xxxxxxxx
------------------------------------
Vice President
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