Exhibit 10.55
EIGHTH AMENDMENT AND TEMPORARY WAIVER AGREEMENT
This Eighth Amendment and Temporary Waiver Agreement, dated as of March
31, 2003 (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, each of the Subsidiary
Guarantors signatories hereto, and BANK OF AMERICA, 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 from time to
time (the "Banks"), and the Agent ( the "Original Credit Agreement"), the Banks
agreed to make revolving loan and letter of credit facilities available to the
Borrower and the Foreign Borrowers.
B. The Original Credit Agreement has been amended by (i) that certain
Amendment Agreement, dated as of July 31, 1998; (ii) that certain Second
Amendment Agreement, dated as of May 20, 1999; (iii) that certain Third
Amendment Agreement, dated as of May 30, 2000; (iv) that certain Fourth
Amendment Agreement, dated as of December 31, 2000; (v) that certain Fifth
Amendment Agreement, dated as of March 26, 2001; (vi) that certain Amendment
Agreement, dated as of June 29, 2001 (which also amended terms of the Second
Amended and Restated Collateral Trust Agreement); (vii) that certain Seventh
Amendment Agreement, dated as of September 19, 2002; and (viii) by separate
letter agreements dated June, 30, 1998, October 7, 1998, March 16, 1999, August
31, 1999, and November 15, 1999 (as amended, the "Existing Credit Agreement").
C. Events of Default (i) exist as of March 31, 2003 under the Existing
Credit Agreement as a result of the failure of the Credit Parties to comply with
the terms of Section 7.11(c), (d) and (e) of the Credit Agreement, and (ii) will
exist as of April 15, 2003 under the Existing Credit Agreement as a result of
the Credit Parties failure to be able to comply with (A) Section 7.1(a) of the
Credit Agreement to the extent that it requires the delivery of annual financial
statements accompanied by an audit opinion not qualified as to the status of the
Consolidated Parties as a going concern, and (B) Section 7.1(f) of the Credit
Agreement to the extent that it requires delivery of an auditor's certificate
within 105 days after the close of the fiscal year, identifying any Defaults or
Events of Default under the Credit Agreement (the "Pending Defaults").
D. The Borrower has requested that the Required Banks provide a limited
waiver of the Pending Defaults and continue to make available to the Borrower
Loans and Letters of Credit provided under the Credit Agreement.
E. The Required Banks are willing to provide a limited waiver of the
Pending Defaults and to continue to make available Loans and Letters of Credit
to the Borrower, based upon and subject to the terms and conditions specified in
this Amendment.
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:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Effective Date" shall mean the date upon which each of the
conditions set forth in Part IV have been satisfied.
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. Addition of New Definitions in Section 1.1. Section 1.1 of
the Existing Credit Agreement is amended by adding the following definitions in
the appropriate alphabetical order:
"Cash Equivalents" means U.S. Dollar denominated time and
demand deposits and certificates of deposit of any Bank or any other
Person approved by the Agent that has executed an Agency Agreement (as
defined in section 7.16 hereof).
"External Deposit Accounts" shall mean deposit accounts, as
permitted by section 7.16 hereof, which are maintained by any of the
Credit Parties with domestic or foreign banking institutions other than
the Agent, the Banks, Bank Affiliates and Persons executing Agency
Agreements, the aggregate balance in such accounts at any time not
exceeding $5,000,000 (or the Dollar Equivalent thereof).
"Interim Facility Limitation" shall mean, for any of the
periods set forth below, the corresponding amount set forth in the
following table, such amount applying at all times during each such
period:
PERIOD INTERIM FACILITY LIMITATION
------ ---------------------------
April 1, through $546,000,000
April 26, 2003
April 27, 2003 $530,000,000
through
May 17, 2003
May 18, 2003 through $525,000,000
June 10, 2003
SUBPART 2.2. Amendment of Definition of "Applicable Percentage".
Section 1.1 of the Existing Credit Agreement is amended by modifying the
definition of "Applicable Percentage" to read in its entirety as follows:
"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Eurocurrency Loan, the
applicable rate of the Standby Letter of Credit Fee for any day for
purposes of Section 3.5(c)(i) or the applicable rate of the Trade
Letter of Credit Fee for any day for purposes of Section 3.5(c)(ii), an
amount equal to 7.00%.
SUBPART 2.3. Amendment of Definition of "Base Rate". Section 1.1 of the
Existing Credit Agreement is amended by modifying the definition of "Base Rate"
to read in its entirety as follows:
"Base Rate" means, for any day, the rate per annum equal to
the Prime Rate for such day plus five and one-quarter percent (5.25%).
Any change in the Base Rate due to a change in the Prime Rate shall be
effective on the effective date of such change in the Prime Rate.
SUBPART 2.4. Amendment of Definition of "Consolidated Net Worth".
Section 1.1 of the Existing Credit Agreement is amended by modifying the
definition of Consolidated Net Worth" to read in its entirety as follows:
"Consolidated Net Worth" means, as of any date, all amounts
which would be included under stockholders' equity on a balance sheet
of the Borrower and its Consolidated Subsidiaries determined as at such
date on a consolidated basis in accordance with GAAP. There shall be
excluded in computing Consolidated Net Worth (a) the amortization of
Excess Reorganization Value since January 1, 1993 as determined in
accordance with GAAP, (b) the effect of the Restructuring Charge,
adjusted to reflect the tax effect of such charge, (c) any non-cash
minimum pension liability adjustment determined in accordance with
GAAP, without giving effect to any adjustment for minority interest in
the cases of clauses (a) and (b) above, (d) the effect of the after-tax
write-off of deferred financing fees and expenses related to the
Original Credit Agreement (and each amendment or restatement thereof,
including the 1994 Credit Agreement and
this Credit Agreement, as amended), (e) the after-tax extraordinary
expenses in 1998 and 1999 associated with the refinancing of the
Borrower's 8-3/4% senior notes, its 9-3/8% senior subordinated
debentures, its 9% sinking fund debentures and the Permitted
Receivables Financing, (f) the effect of the 2000 Restructuring
Charges, and (g) the effect of the 2002 Restructuring Charges.
This modification is intended to conform this definition to the definitions of
"Consolidated Net Income" and "Consolidated Net Loss" which were previously
amended to exclude the effects of the 2002 Restructuring Charges.
SUBPART 2.5. Amendment of Definition of "Permitted Investments".
Section 1.1 of the Existing Credit Agreement is amended by modifying the
definition of "Permitted Investments" to read in its entirety as follows:
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) Investments by one Credit Party in another
Credit Party, (c) Excluded Deposit Accounts (as defined in section 7.16
hereof), and (d) the External Deposit Accounts.
SUBPART 2.6. Amendment of Section 3.3(b). Section 3.3(b) of the
Existing Credit Agreement is amended by causing clause (i) thereof to read in
its entirety as follows:
(i) In Excess of Committed Amounts or Other Limitations. If
any time, (A) the sum of the aggregate principal amount of outstanding
Revolving Loans plus the aggregate principal amount of outstanding
Competitive Loans, plus the Dollar Amount of the aggregate principal
amount of outstanding Foreign Currency Loans plus the aggregate
principal amount of outstanding Swingline Loans, plus the Dollar Amount
of LOC Obligations outstanding shall exceed the Revolving Committed
Amount or the applicable Interim Facility Limitation, or (B) the
aggregate principal amount of outstanding Competitive Loans shall
exceed the Competitive Loan Maximum Amount, or (C) the aggregate
principal amount of outstanding Swingline Loans shall exceed the
Swingline Committed Amount, or (D) the Dollar Amount of the aggregate
principal amount of outstanding Foreign Currency Loans shall exceed the
Foreign Currency Commitment, then the Borrower immediately shall prepay
the Revolving Loans (or, after all Revolving Loans have been repaid,
cash collateralize the LOC Obligations), Competitive Loans, Foreign
Currency Loans and/or Swingline Loans (as the case may be) in an amount
sufficient to eliminate such excess.
SUBPART 2.7. Amendment of Section 3.5. Section 3.5 of the Existing
Credit Agreement is amended by adding a new subsection (d) which reads in its
entirety as follows:
(d) Unused Commitment Fee. The Borrower shall pay to the
Agent, for the ratable benefit of the Banks, an unused commitment fee
equal to the rate of 1% per annum upon the actual daily amount by which
the Revolving Committed Amount exceeds the sum of (x) all outstanding
Loans and (y) the outstanding LOC Obligations. The unused commitment
fee shall accrue at all times, including at any time during which one
or more of the conditions in Section 5.2 is not met, and shall be due
and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing on June 30, 2003 (for
the immediately preceding quarter) and on the Maturity Date. The
Borrower shall provide the Agent with a calculation of the unused
commitment fee applicable to each quarter in the quarterly financial
statements delivered to the Agent and each Bank pursuant to section
7.1(b) hereof, such calculation to be in form and content reasonably
satisfactory to the Agent.
SUBPART 2.8. Amendment of Section 5.2. Section 5.2 of the Existing
Credit Agreement is amended by (i) deleting the word "and" at the end of section
5.2(e) and (ii) adding a new subsection, designated as section 5.2(g),
immediately following existing subsection 5.2(f), which new subsection reads in
its entirety as follows:
(g) Immediately after giving effect to the making of such Loan
(and the application of the proceeds thereof) or to the issuance of
such Letter of Credit, as the case may be, (i) the sum of the aggregate
principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding Competitive Loans plus the Dollar
Amount of the aggregate principal amount of Foreign Loans, plus the
aggregate principal amount of Swingline Loans plus the Dollar Amount of
LOC Obligations outstanding shall not exceed the applicable Interim
Facility Limitation.
SUBPART 2.9. Amendment of Section 7.1(n). Section 7.1(n) of the
Existing Credit Agreement is amended by causing clause (iii) thereof to read in
its entirety as follows:
(iii) by 5:00 p.m. (Eastern time) on Wednesday of each week,
(1) a summary statement of the cash inflows and cash outflows of the
Consolidated Parties for the prior week, (2) cash flow projections for
the Consolidated Parties for the next succeeding 13 weeks, (3) a
schedule summarizing all of the Funded Indebtedness of the Credit
Parties, and
(4) a summary statement of the cash and Cash Equivalents held by the
Credit Parties in the aggregate as of the close of business on Friday
of the preceding week.
SUBPART 2.10. Addition of New Section 7.17. The Existing Credit
Agreement is further amended by adding a new section 7.17 which reads in its
entirety as follows:
7.17 Administration of Excess Cash Balances. The Borrower
shall cause the aggregate Dollar Amount of all cash and Cash
Equivalents held, owned or maintained by or for the Borrower and the
other Credit Parties (exclusive of Excluded Deposit Accounts and the
External Deposit Accounts) at all times to be less than $10,000,000,
and the Borrower shall, and shall cause each other Credit Party to,
repay on a daily basis the Revolving Loans by the amount by which such
aggregate cash and Cash Equivalents exceeds $10,000,000.
SUBPART 2.11. Addition of New Section 7.18. The Existing Credit
Agreement is further amended by adding a new section 7.18 which reads in its
entirety as follows:
7.18 Interim Facility Limitation. The Borrower shall cause
the aggregate Dollar Amount of all outstanding Loans and the
outstanding LOC Obligations to be less than the applicable Interim
Facility Limitation at all times.
SUBPART 2.12. Amendment of Section 8.6. Section 8.6 of the Existing
Credit Agreement is amended by deleting each of the two provisos appearing in
section 8.6(a)(iv), causing section 8.6(a)(iv) to read in its entirety as
follows:
(iv) the Borrower may maintain its Investments in, and have
loans and/or advances to, its Subsidiaries existing on the date hereof
and thereafter make loans and/or advances to the other Credit Parties
in the ordinary course of business consistent with past practices; [.]
SUBPART 2.13. Amendment of Section 9.1(c). Section 9.1(c) of the
Existing Credit Agreement is amended by modifying clause (i) thereof to read in
its entirety as follows:
(i) default in the due performance or observance of any term,
covenant, or agreement contained in Sections 7.2, 7.9, 7.11, 7.12,
7.17, 7.18, 8.2, 8.4, 8.5, 8.6, 8.7, 8.8 or 8.15; [.]
SUBPART 2.14. Additional Amendment of Section 9.1. Section 9.1 of the
Existing Credit Agreement is further amended by (A) replacing the period after
section 9.1(l) with a semi-colon and the word "or", and (B) adding a new
subsection (m), immediately following section 9.1(l), which reads in its
entirety as follows:
(m) Permitted Receivables Financing. There shall occur and be
continuing an Event of Default under the Permitted Receivables
Financing with Congress Financial Corporation (Southern), as Agent, and
the other lenders party thereto.
PART III
REAFFIRMATION/LIMITED WAIVER
SUBPART 3.1. Reaffirmation of Existing Debt and Liens. The Credit
Parties acknowledge and confirm that (a) the Trustee, on behalf of the Banks and
the other Secured Parties (as defined in the Collateral Documents), has valid
and enforceable first priority perfected liens and security interests in the
Collateral, which liens and security interests are not adversely affected or
impaired by this Amendment, (b) the Borrower's obligation to repay the
outstanding principal amount of the Loans and reimburse the Issuing Lender for
any drawing on a Letter of Credit is unconditional and not subject to any
offsets, defenses or counterclaims, (c) the unconditional guaranty of payment
executed and delivered by each of the Guarantors under the Credit Documents is
hereby reaffirmed in full by each Guarantor, and the obligations of each
Guarantor is unconditional and not subject to any offsets, defenses or
counterclaims, (d) the Agent, the Trustee and the Banks have performed fully all
of their respective obligations under the Credit Agreement and the other Credit
Documents, and (e) the execution of this Agreement does not waive (except for
the limited waiver of the Pending Defaults specified below) or release any term
or condition of the Credit Agreement or any of the other Credit Documents or any
of their rights or remedies under such Credit Documents or applicable law or any
of the obligations of any Credit Party thereunder.
SUBPART 3.2. Limited Waiver.
The Borrower acknowledges that the Pending Defaults will result from
(i) the failure of the Credit Parties to be able to
comply with the financial covenants contained in Section 7.11(c), (d) and (e)
for the fiscal quarter ending nearest Xxxxx 00, 0000, (xx) the failure of the
Credit Parties to comply with Section 7.1(a)'s requirement for the timely
delivery of annual financial statements accompanied by an audit opinion
unqualified as to the status of the Consolidated Parties as a going concern, and
(iii) the failure of the Credit Parties to comply with Section 7.1(f)'s
requirement for timely delivery of the auditor's certificate identifying any
Defaults or Events of Default. The Required Banks hereby waive the Pending
Defaults for the period from March 31, 2003 through and including June 10, 2003
(the "Waiver Period"), subject to the terms and conditions set forth herein.
This limited waiver shall not modify or affect (i) the Credit Parties'
obligation to comply at the conclusion of the Waiver Period with the terms of
Section 7.11(c), (d), or (e) of the Credit Agreement as measured nearest Xxxxx
00, 0000, (xx) the Credit Parties' obligation to comply with the terms of
Section 7.11(c), (d), or (e) as measured at the end of any fiscal quarter other
than nearest Xxxxx 00, 0000, (xxx) the Credit Parties' obligations at the end of
the Waiver Period to comply with Section 7.1(a)'s requirement for the timely
delivery of financial statements accompanied by an audit opinion unqualified as
to the status of the Consolidated Parties as a going concern, (iv) the Credit
Parties' obligations at the end of the Waiver Period to comply with Section
7.1(f)'s requirement for the timely delivery of the auditor's certificate
identifying any Defaults or Events of Default, and (v) the Credit Parties'
obligation to comply fully with any other duty, term, condition, obligation or
covenant contained in the Credit Agreement and the other Credit Documents.
Except for the limited waiver set forth above, nothing contained herein
shall be deemed to constitute a waiver of any rights or remedies the Agent, the
Trustee, or any Bank may have under the Credit Agreement or any other Credit
Document or under applicable law; it being understood that the Agent, the
Trustee, and the Banks may not exercise their rights and remedies with respect
to the Pending Defaults during the Waiver Period as long as no other Default or
Event of Default occurs or exists. The limited waiver set forth herein shall be
effective only in this specific instance for the duration of the Waiver Period
and shall not obligate the Banks to waive any other Default or Event of Default,
now existing or hereafter arising. This is a one-time waiver, and the Agent and
the Banks shall have no obligation to extend the waiver or otherwise amend the
Credit Agreement at the end of the Waiver Period.
The Credit Parties acknowledge and agree that unless the Required Banks
further amend the Credit Agreement or otherwise agree in writing to continue
this waiver beyond June 10, 2003, an Event of Default will exist under the
Credit Agreement at the expiration of the Waiver Period, and thereafter the
Agent, the Trustee, and the Banks may pursue all rights and remedies available
to them under the Credit Agreement, the other Credit Documents and applicable
law. The Credit Parties further acknowledge and agree that, to the extent that
any Defaults or Events of Defaults other than the Pending Defaults now exist or
hereafter arise during the Waiver Period, the Agent, the Trustee and the Banks
may immediately pursue all rights and remedies available to them in respect
thereof under the Credit Agreement, the other Credit Documents and applicable
law.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Effective Date. The amendments made by this Agreement
shall be deemed effective as of March 31, 2003 when (i) all of the conditions
set forth in this Subpart 4.1 shall have been satisfied, and (ii) the Required
Banks, the Borrower, the Foreign Borrowers, and the Agent shall have duly
executed counterparts of this Agreement and provided original copies thereof to
the Agent. Notwithstanding the foregoing, the amendments effected by Subpart
2.13 hereof shall be deemed effective as of December 31, 2002 upon the
satisfaction of the conditions set forth in this Subpart 4.1 and the due
execution and delivery of this Agreement by the Required Banks, the Borrower,
the Foreign Borrower and the Agent have occurred.
SUBPART 4.1.1. Closing Certificate. The Agent shall have
received a certificate from the Borrower and the Foreign Borrowers
certifying that (i) after giving effect to this Agreement, no Default
or Event of Default exists as of the Effective Date (other than the
Pending Defaults), and (ii) the representations and warranties of each
Credit Party made in Subpart 5.4 of this Agreement or in or pursuant to
the Credit Documents are true in all material respects on and as of the
Effective Date.
SUBPART 4.1.2. Guarantors Consent. Each of the Guarantors
shall have executed the acknowledgement and consent included in the
signature pages of this Agreement (the "Consent"), and the Agent shall
have received such Consent executed by each Guarantor.
SUBPART 4.1.3. Corporate Action. The Borrower shall deliver to
the Agent certified copies of all corporate action taken by each Credit
Party approving this Agreement, the Consent, and each of the documents
executed and delivered in connection herewith or therewith (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 0.0.0.Xxxxx Opinion. The Agent shall have received the
legal opinion of Weil, Gotshal & Xxxxxx LLP, counsel to the Borrower,
addressed to the Agent and the Banks, in form and content reasonably
satisfactory to the Agent and its counsel.
SUBPART 4.1.5.Amendment of Second Lien Credit Agreement. The
Agent shall have received a true and complete copy of an amendment to
the Second Lien Credit Agreement, or a temporary waiver by the
requisite Second Lien Lenders through at least June 10, 2003, with
respect to (a) any default existing under section 7.6(a)(vii) thereof
regarding permitted levels of intercompany indebtedness owed by Xxxxx
to the Borrower, and (b) any default existing under section 6.1(a)
thereof regarding the delivery of annual financial statements and an
unqualified audit opinion concerning the Credit Parties' status as a
going concern. Such documents shall be in form and substance reasonably
satisfactory to the Agent.
SUBPART 4.1.6.Congress Waiver. With respect to the Permitted
Receivables Financing agented by Congress Financial Corporation
(Southern), the Agent shall have received a true and complete copy of
an amendment or temporary waiver agreement, in form and substance
reasonably satisfactory to the Agent, pursuant to which the requisite
lenders thereto waive, through at least June 10, 2003, (i) any
applicable requirement that annual financial statements delivered by
the Borrower be accompanied by an unqualified audit opinion concerning
the Credit Parties' status as a going concern, and (ii) any default,
event of default or similar event arising due to the Borrower's
inability heretofore to procure a permanent amendment or waiver of the
Pending Defaults under the Existing Credit Agreement.
SUBPART 4.1.7. Amendment Fee. An amendment fee shall be paid
to those Banks executing and delivering this Agreement to the Agent
prior to 3:00 p.m. (Eastern time) on April 15, 2003. Such fee shall be
in the amount equal to 25 basis points (0.25%) of each such Bank's
Revolving Commitment Percentage as of the date of this Agreement.
SUBPART 4.1.8.Documentation. The Borrower shall cause to be
delivered to the Agent such other documentation as the Agent may
determine in its reasonable discretion.
SUBPART 4.1.9. Costs and Expenses. The Borrower shall pay all
of the reasonable costs and expenses of the Agent (including without
limitation the reasonable fees and expenses of counsel to the Agent and
of FTI Consulting, Inc.) incurred by the Agent in connection with the
negotiation, preparation, execution, and delivery of this Agreement. In
addition, the Borrower shall provide to each of (i) counsel to the
Agent and (ii) FTI Consulting, Inc. retainers in the amount of $200,000
against their respective professional services to be rendered on behalf
of the Agent and the Banks during the Waiver Period.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Agreement to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Agreement.
SUBPART 5.2. 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 5.3. 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 (a) the
"Credit Agreement", "thereunder", "thereof" or words of like import referring to
the Existing Credit Agreement shall mean the Amended Credit Agreement.
SUBPART 5.4. Representations and Warranties. Each of the Credit Parties
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) this Agreement has been duly
executed and delivered by such Credit Party, and constitutes a legal, valid and
binding obligation of such Credit Party, enforceable against such Credit Party
in accordance with its terms, (iv) it has no claims, counterclaims, offsets, or
defenses to the Credit Documents and the performance of its obligations
thereunder, (v) 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), (vi) 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 (vii) as of the date of,
and giving effect to, this Agreement, no Event of Default or Defaults exists
(other than the Pending Defaults).
SUBPART 5.5. 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 and of FTI Consulting, Inc.) incurred by
the Agent in the enforcement or preservation of any rights and remedies of the
Banks and the Agent hereunder.
SUBPART 5.6. 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.
SUBPART 5.7. 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 5.8. 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 5.9. 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.]
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. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President-Finance
and Chief Financial Officer
THE FOREIGN BORROWERS: WESTPOINT XXXXXXX (UK) LIMITED
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
WESTPOINT XXXXXXX (EUROPE)
LIMITED
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
THE BANKS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Bank and in its capacity as
Agent
By: /s/ XxXxxx X. Xxxx, III
------------------------------
Name: XxXxxx X. Xxxx, III
Title: Managing Director
BANC OF AMERICA SECURITIES, LLC,
as Agent for Bank
of America, N.A.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Associate
[Signatures Continued]
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCOTIABANC INC.
By: /s/ W. E. Zarrett
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Director
SUNTRUST BANK
By: /s/ X. Xxxxxxxxxxx Deistey
------------------------------
Name: X. Xxxxxxxxxxx Deistey
Title: Managing Director
ABN AMRO BANK, N.V.
By: /s/ X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
[Signatures Continued]
AMSOUTH BANK
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President AmSouth Bank
BARCLAYS BANK PLC
By: /s/ Xxxxxxx XxXxxxxx
------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Director
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch
By:
------------------------------
Name:
------------------------------
Title:
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By:
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Name:
------------------------------
Title:
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BEAR XXXXXXX & CO. INC.
By: /s/ X. XxXxxxxxx
------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
CANPARTNERS INVESTMENTS IV LLC
By: /s/ R.C.B. Xxxxxxx
------------------------------
Name: R.C.B. Xxxxxxx
Title: Authorized Member
[Signatures Continued]
DK ACQUISITION PARTNERS
By: /s/ X. Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: General Partner
GENERAL ELECTRIC CAPITAL CORP.
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: Duly Authorized Signatory
HCM/Z SPECIAL OPPORTUNITIES LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Portfolio Manager
XXXXXXXX MASTER FUND LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
OAK HILL SECURITIES FUND II, L.P. OAK HILL SECURITIES FUND II LP
By: Oak Hill Securities GenPar, L.P.
its General Partner
By:____________________________
By: Oak Hill Securities MGP II, Inc., Name:__________________________
its General Partner Title:_________________________
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL SECURITIES FUND, L.P. OAK HILL SECURITIES FUND LP
By: Oak Hill Securities GenPar, L.P.
its General Partner
By:____________________________
By: Oak Hill Securities MGP II, Inc., Name:__________________________
its General Partner Title:_________________________
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
[Signatures Continued]
SATELLITE SENIOR INCOME FUND II LLC
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Principal
SATELLITE SENIOR INCOME FUND LLC
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Principal
WSX INVESTORS LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
DRAWBRIDGE OPPORTUNITIES FUND LP
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Operating Officer
SPECIAL SITUATIONS INVESTING
GROUP, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
