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EXHIBIT 10.5
AMENDMENT AGREEMENT
This Amendment Agreement, dated as of June 29, 2001 (this "Agreement"),
is among WESTPOINT ▇▇▇▇▇▇▇ INC., a Delaware corporation (the "Borrower"),
WESTPOINT ▇▇▇▇▇▇▇ (UK) LIMITED, WESTPOINT ▇▇▇▇▇▇▇ (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") and as
collateral trustee.
RECITALS:
A. Pursuant to that certain Second Amended and Restated Credit
Agreement, dated as of June 9, 1998, among the Borrower, WestPoint ▇▇▇▇▇▇▇ (UK)
Limited and WestPoint ▇▇▇▇▇▇▇ (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 "First Amended Credit Agreement").
C. Pursuant to that certain Second Amendment Agreement (the
"Second Amendment"), dated as of May 20, 1999, by and among the Borrower, the
Foreign Borrowers, the Banks party thereto, and the Agent, the First Amended
Credit Agreement was amended to increase the aggregate Revolving Committed
Amount to $800,000,000 by increasing the Revolving Commitment of certain
consenting Banks (as amended by the Second Amendment, the "Second Amended Credit
Agreement").
D. Pursuant to that certain Third Amendment Agreement (the "Third
Amendment"), dated as of May 30, 2000, by and among the Borrower, the Foreign
Borrowers, the Banks party thereto, and the Agent, the Second Amended Credit
Agreement was amended by further modifying the Revolving Committed Amount in
section 2.1 and by adding certain financial covenants in section 7.11 (as
amended by the Third Amendment, the "Third Amended Credit Agreement").
E. Pursuant to that certain Fourth Amendment Agreement (the
"Fourth Amendment"), dated as of December 31, 2000, by and among the Borrower,
the Foreign Borrowers, the Banks parties thereto, and the Agent, certain
financial covenants, definitions and other terms of the Third Amended Credit
Agreement were amended (as amended by the Fourth Amendment, the "Fourth Amended
Credit Agreement").
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F. Pursuant to that certain Fifth Amendment Agreement (the "Fifth
Amendment"), dated as of March 26, 2001, by and among the Borrower, the Foreign
Borrowers, the Banks party thereto, and the Agent, additional amendments were
made to certain financial covenants, prospective reductions in commitment
amounts were deferred and certain definitions were amended.
G. By separate letter agreements dated June, 30, 1998, October 7,
1998, March 16, 1999, August 31, 1999, and November 15, 1999, the Borrower, the
Foreign Borrowers, the Required Banks, and the Agent amended the Original Credit
Agreement by amending the definitions of the terms "Maximum Restricted Payment
Amount" and "Minimum Consolidated Net Worth" (the "Letter Amendments"). The
Original Credit Agreement, as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment and
the Letter Amendments shall be referred to as the "Existing Credit Agreement".
H. The Borrower and the Foreign Borrowers have requested that the
Required Banks agree to make certain additional amendments to the Existing
Credit Agreement and related documents.
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 June 29, 2001 subject to the
occurrence of each of the conditions set forth in Subpart 4.1.
"Intercreditor and Lien Subordination Agreement" means that
certain Intercreditor and Lien Subordination Agreement, dated on or
about June 29, 2001, substantially in the form of Exhibit "A" attached
hereto, among inter alia Bank of America, N.A., not in its individual
capacity but solely as the trustee under the Collateral Trust
Agreement, the Borrower, the Foreign Borrowers and the Second Lien
Administrative Agent, as amended, supplemented or otherwise modified
from time to time.
"Second Lien Administrative Agent" means Bankers Trust
Company, not in its
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individual capacity but solely as the agent serving for the benefit of
the Second Lien Lenders, as more particularly described in the
Intercreditor and Lien Subordination Agreement.
"Second Lien Lenders" has the meaning ascribed to such term in
the Intercreditor and Lien Subordination Agreement.
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 of Definitions in the Existing Credit
Agreement. Section 1.1 of the Existing Credit Agreement is amended by revising
the definitions of each of the following terms to read in their entirety
respectively 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 3.00%.
"Base Rate" means, for any day, the rate per annum equal to
the Prime Rate for such day plus one and one-quarter percent (1.25%).
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.
"Credit Party Obligations" means, without duplication, (i) all
of the obligations of the Credit Parties to the Banks (including the
Issuing Lender), the Agent and or the Trustee, whenever arising, under
this Credit Agreement, the Notes, the Collateral Documents or any of
the other Credit Documents (including, but not limited to, any interest
accruing after the occurrence of a Bankruptcy Event with respect to any
Credit Party, regardless of whether such interest is an allowed claim
under the Bankruptcy Code), (ii) liabilities and obligations, whenever
arising, owing from any Credit Party to any Bank, or any Affiliate of a
Bank, arising under any Hedging Agreement, and (iii) liabilities,
obligations, charges, fees and/or expenses, whenever arising, owing
from any Credit Party to any Bank, or any Affiliate of a Bank, arising
under or pursuant to any cash management, treasury, depository or other
commercial banking agreement (including, but not limited to, any
liabilities and obligations incurred in connection with automated
clearinghouse transfers and any advances made in respect of uncollected
funds).
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"Eligible Assignee" means (i) a Bank; (ii) an Affiliate of a
Bank; and (iii) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, or other
entity) 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 its business and which shall represent to the
satisfaction of the Agent, in its reasonable discretion, that such
entity has the immediate financial resources and functional capability
of performing all actions required of a Bank pursuant to the Credit
Documents, including but not limited to funding and indemnification
requirements; provided, however, that neither the Borrower, any other
Credit Party nor an Affiliate of the Borrower or any other Credit Party
shall qualify as an Eligible Assignee.
"Excluded Asset Disposition" means (i) the sale, conveyance or
other contribution of applicable Transferred Assets by ▇▇▇▇▇ or any
Consolidated Party as part of any Permitted Receivables Financing, (ii)
any Asset Disposition by any Consolidated Party to any Credit Party
other than the Borrower if the Credit Parties shall cause to be
executed and delivered such documents, instruments and certificates as
the Agent may request so as to cause the Credit Parties to be in
compliance with the terms of Section 2.2 and 2.3 of the Collateral
Trust Agreement, (iii) any sale or other disposition of the Excluded
Property (as defined in the Collateral Trust Agreement) and the sale of
approximately 34 acres of undeveloped land of the Borrower in Opelika,
Alabama, and (iv) the sale, conveyance or other disposition of such
other assets in other transactions provided that the aggregate
consideration received in all such other transactions by any
Consolidated Party does not exceed $800,000 in the aggregate during any
fiscal year of the Borrower and after giving effect to such Asset
Disposition; provided, however, in each instance referred to in
subsection (iv) hereof, (a) after giving effect to such Asset
Disposition, no Default or Event of Default exists, and (b) the
aggregate consideration received by the Consolidated Parties in
connection with such Asset Disposition shall be reasonably equivalent
in value to the properties sold, conveyed or otherwise disposed of.
"Restricted Debt Payment" means any purchase, prepayment,
redemption or other acquisition or retirement for value of (a) any
Indebtedness of the Borrower under the Senior Notes or the Senior Note
Indentures, (b) any Indebtedness of the Borrower under the Second Lien
Credit Agreement or any documents or instruments relating thereto, or
(c) any other Funded Indebtedness (other than the Credit Party
Obligations) of any of the Consolidated Parties.
SUBPART 2.2 Amendment of Definition of "Permitted Liens". The
definition of "Permitted Liens" in section 1.1 is amended by (1) striking the
word "and" at the end of subclause (xx) thereof, (2) creating a new subclause
(xxi) which reads in its entirety as follows and (3) re-numbering existing
subclause (xxi) as subclause (xxii) which reads in its entirety as follows:
(xxi) Liens created pursuant to the Second Lien Collateral
Security Agreement and the related collateral documents which are
subject at all times to the Intercreditor and Lien Subordination
Agreement and securing Indebtedness outstanding at any time not in
excess of the principal amount of $165,000,000; and
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(xxii) extensions, renewals and replacements of any Lien
described in sections (i) - (xxi) above, provided that the principal
amount of the Indebtedness secured thereby is not increased and such
extension or renewal is limited to the Property so encumbered
(including the continuation of any after acquired property clauses).
SUBPART 2.3 Addition of New Definitions in Section 1.1. Section
1.1 of the Existing Credit Agreement is further amended by adding each of the
following definitions in the appropriate alphabetical order:
"Intercreditor and Lien Subordination Agreement" means that
certain agreement, dated on or about June 29, 2001, among the Borrower,
the Foreign Borrowers, and certain of the Domestic Subsidiaries, the
Senior Collateral Trustee and the Second Lien Administrative Agent, as
amended or modified from time to time in accordance with the provisions
thereof.
"Second Lien Collateral Security Agreement" means that certain
agreement, dated on or about June 29, 2001, among the Borrower, certain
of the Domestic Subsidiaries, and the Second Lien Administrative Agent,
pursuant to which the Borrower, and such Domestic Subsidiaries grant
certain liens and security interests to the Second Lien Administrative
Agent for the benefit of the secured parties identified therein, as it
may be amended or modified from time to time either (i) to conform to
amendments or modifications in the Collateral Trust Agreement or (ii)
with the prior written consent of the Senior Collateral Trustee.
"Second Lien Administrative Agent" means Bankers Trust
Company, not in its individual capacity but solely in its capacity as
agent for the benefit of the secured parties under the Second Lien
Collateral Security Agreement and other related collateral documents,
together with any successor or replacement trustee acting in such
capacity.
"Second Lien Credit Agreement" means that certain credit
agreement, dated on or about June 29, 2001, by and among the Borrower,
the Second Lien Lenders and the Second Lien Administrative Agent,
pursuant to which the Second Lien Lenders agree to extend loans to the
Credit Parties in the aggregate principal amount not to exceed
$165,000,000 pursuant to Section 8.1(j) hereof, as it may be amended or
modified from time to time either (i) to conform to amendments or
modifications of the Senior Credit Agreement or (ii) with the prior
written consent of the Required Banks.
"Second Lien Indebtedness Prepayment Amount" means an amount
equal to the total amount of the funds made available, or to be made
available, to the Borrower or any of the Credit Parties pursuant to any
secured Indebtedness permitted under Section 8.1(j) after payment of
transaction fees and expenses related thereto and recognition of any
original issue discount.
"Second Lien Lenders" shall have the meaning ascribed to such
term in the Intercreditor and Lien Subordination Agreement.
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"Senior Collateral Trustee" means Bank of America, N.A., not
in its individual capacity but solely in its capacity as trustee under
the Collateral Trust Agreement for the benefit of the secured parties
identified therein, together with any successor or replacement trustee
acting in such capacity.
SUBPART 2.4 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 applicable 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 (i) at any time prior to June 29, 2001, EIGHT
HUNDRED MILLION DOLLARS ($800,000,000) less the Additional Permitted
Receivables Financing Amount; (ii) from and after June 29, 2001 through
and including October 31, 2002, SEVEN HUNDRED SEVENTEEN MILLION FIVE
HUNDRED THOUSAND DOLLARS ($717,500,000) less the Additional Permitted
Receivables Financing Amount; (iii) from and after November 1, 2002
through and including January 31, 2003, SIX HUNDRED NINETY-TWO MILLION
FIVE HUNDRED THOUSAND DOLLARS ($692,500,000), less the Additional
Permitted Receivables Financing Amount; (iv) from and after February 1,
2003 through and including July 31, 2003, SIX HUNDRED SIXTY-SEVEN
MILLION FIVE HUNDRED THOUSAND DOLLARS ($667,500,000), less the
Additional Permitted Receivables Financing Amount; (v) from and after
August 1, 2003 through and including October 31, 2003, SIX HUNDRED
FORTY-TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($642,500,000), less
the Additional Permitted Receivables Financing Amount; (vi) from and
after November 1, 2003 through and including January 31, 2004, SIX
HUNDRED SEVENTEEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($617,500,000),
less the Additional Permitted Receivables Financing Amount; and (vii)
from and after February 1, 2004, SIX HUNDRED MILLION DOLLARS
($600,000,000), less the Additional Permitted Receivables Financing
Amount (as such aggregate maximum amounts may be reduced from time to
time as provided herein or further reduced as required by 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 Percentage of the
Revolving Committed Amount, and (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
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principal amount of outstanding Swingline Loans plus the Dollar Amount
of LOC Obligations outstanding shall not exceed the Revolving Committed
Amount then in effect. 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(a) 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, 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 2.5 Amendments to Section 2.5. Section 2.5(a) of the
Existing Credit Agreement is amended to read in its entirety as follows:
(a) Swingline Commitment. Subject to the terms and
conditions hereof and in reliance upon the representations and warranties set
forth herein, the Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans requested by the Borrower in Dollars to the
Borrower (each a "Swingline Loan" and, collectively, the "Swingline Loans") from
time to time from the Closing Date until June 29, 2001 for the purposes
hereinafter set forth; provided, however, (i) the aggregate principal amount of
Swingline Loans outstanding at any time prior to June 29, 2001 shall not exceed
TWENTY-FIVE MILLION DOLLARS ($25,000,000) (the "Swingline Committed Amount"),
(ii) as of June 29, 2001, the Swingline Committed Amount shall be automatically
and permanently terminated, and (iii) at all times, the aggregate principal
amount of outstanding Revolving Loans plus the aggregate principal amount of
outstanding 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 then in
effect.
In addition, Section 2.5(b) of the Existing Credit Agreement is amended by
replacing the references to "Maturity Date" in each of the first and second
sentences of Section 2.5(b) with the phrase "June 29, 2001".
SUBPART 2.6 Amendments to Section 3.3. Section 3.3(b) of the
Existing Credit Agreement is amended by re-numbering existing Section
3.3(b)(iii) as Section 3.3(b)(iv) and creating a new Section 3.3(b)(iii) which
reads in its entirety as follows:
(iii) Application of Second Lien Indebtedness Prepayment
Amount. Upon the closing and funding of any credit or financing
transaction in favor of the Borrower or the Credit Parties creating
Indebtedness permitted under Section 8.1(j), then the Borrower shall
immediately prepay the Revolving Loans in Dollars in an amount equal to
the Second Lien Indebtedness Prepayment Amount.
SUBPART 2.7 Amendments to Section 3.4. Section 3.4(b) of the
Existing Credit Agreement is amended to read in its entirety as follows:
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(b) Mandatory Reductions. On any date that the Revolving
Loans are required to be prepaid pursuant to the terms of Sections
3.3(b)(ii), the Revolving Committed Amount then in effect automatically
shall be permanently reduced by the amount of such required prepayment.
On any date that the Revolving Loans are required to be prepaid
pursuant to the terms of Section 3.3(b)(iii), the Revolving Committed
Amount then in effect automatically shall be permanently reduced by
$82,500,000. In addition, in the event of any Expanded Permitted
Receivables Financing, then the Revolving Committed Amount then in
effect shall automatically and immediately be permanently reduced
dollar-for-dollar by the Additional Permitted Receivables Financing
Amount.
SUBPART 2.8 Amendment to Section 3.5(b). Section 3.5(b) of the
Existing Credit Agreement is amended to read in its entirety as follows:
(b) Facility Fee. In consideration of the Revolving
Commitments of the Banks hereunder, the Borrower agrees to pay to the
Agent for the account of each Bank a fee (the "Facility Fee") on the
Revolving Committed Amount computed at a per annum rate of 0.50%. The
Facility Fee shall be due and payable in arrears on the last Business
Day of each March, June, September and December (and any date that the
Revolving Committed Amount is reduced as provided in Sections 2.1(a),
3.4(a) or 3.4(b)) and the Maturity Date for the immediately preceding
quarter (or portion thereof).
SUBPART 2.9 Amendment of Section 7.11(c). Section 7.11(c) of the
Existing Credit Agreement is amended to read in its entirety as follows:
(c) Interest Coverage Ratio. Have at the end of each
fiscal quarter ending on or about each date set forth below, an
Interest Coverage Ratio which is not less than the corresponding ratio
indicated (it being understood and agreed that, for purposes of
calculating the Interest Coverage Ratio for the fiscal quarters ending
September 30, 2001, December 31, 2001 and March 31, 2002, the
Consolidated EBITDA for the fiscal quarter ending June 30, 2001 shall
be deemed to be $33,891,000, notwithstanding the fact that the actual
Consolidated EBITDA for such fiscal quarter could be a different
amount):
DATE RATIO
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June 30, 2001 1.75 to 1.00
September 30, 2001 1.47 to 1.00
December 31, 2001 1.43 to 1.00
March 31, 2002 1.40 to 1.00
June 30, 2002 1.47 to 1.00
September 30, 2002 1.56 to 1.00
December 31, 2002 1.61 to 1.00
March 31, 2003 1.63 to 1.00
June 30, 2003 1.65 to 1.00
September 30, 2003 1.68 to 1.00
December 31, 2003 1.70 to 1.00
March 31, 2004 and each quarter 2.00 to 1.00
ending thereafter
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SUBPART 2.10 Amendment of Section 7.11(d). Section 7.11(d) of the
Existing Credit Agreement is amended to read in its entirety as follows:
(d) Balance Sheet Debt to Consolidated EBITDA Ratio. Have
at the end of each fiscal quarter ending on or about each date set
forth below, a ratio of Balance Sheet Debt on such date to Consolidated
EBITDA for the four (4) fiscal quarters ending on such date of not more
than the indicated amounts (it being understood and agreed that, for
purposes of calculating such ratio for the fiscal quarters ending
September 30, 2001, December 31, 2001 and March 31, 2002, the
Consolidated EBITDA for the fiscal quarter ending June 30, 2001 shall
be deemed to be $33,891,000, notwithstanding the fact that the actual
Consolidated EBITDA for such fiscal quarter could be a different
amount):
DATE RATIO
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June 30, 2001 7.73 to 1.00
September 30, 2001 8.45 to 1.00
December 31, 2001 8.10 to 1.00
March 31, 2002 8.29 to 1.00
June 30, 2002 7.89 to 1.00
September 30, 2002 7.30 to 1.00
December 31, 2002 6.80 to 1.00
March 31, 2003 6.72 to 1.00
June 30, 2003 6.63 to 1.00
September 30, 2003 6.55 to 1.00
December 31, 2003 6.46 to 1.00
March 31, 2004 and each quarter 4.25 to 1.00
ending thereafter
SUBPART 2.11 Addition of Section 7.11(e). Section 7.11 of the
Existing Credit Agreement is further amended by adding a new subsection (e)
which reads in its entirety as follows:
(e) Minimum Consolidated EBITDA. Have at the end of each
fiscal quarter ending on or about each date set forth below, a
Consolidated EBITDA for the indicated fiscal period ending on or about
such date of not less than the indicated amount:
DATE FISCAL PERIOD AMOUNT
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September 30, 2001 One most recent fiscal quarter $ 63,436,000
December 31, 2001 Two most recent fiscal quarters $ 124,980,000
March 31, 2002 Three most recent fiscal quarters $ 172,675,000
June 30, 2002 Four most recent fiscal quarters $ 221,836,000
September 30, 2002 Four most recent fiscal quarters $ 234,770,000
December 31, 2002 Four most recent fiscal quarters $ 244,950,000
March 31, 2003 Four most recent fiscal quarters $ 246,667,000
June 30, 2003 Four most recent fiscal quarters $ 248,327,000
September 30, 2003 Four most recent fiscal quarters $ 251,226,000
December 31, 2003 Four most recent fiscal quarters $ 253,817,000
SUBPART 2.12 Addition of a New Section 7.16. The Existing Credit
Agreement is further amended by adding a new Section 7.16, which reads in its
entirety as follows:
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7.16 Deposit Accounts.
On or before August 31, 2001, the Borrower will, and will
cause each of the other Credit Parties, to establish and maintain at
all times any and all deposit accounts, other than payroll, withholding
tax and other fiduciary accounts (collectively, the "Excluded Deposit
Accounts"), with either (i) the Agent, (ii) any of the Banks, or (iii)
Bank Affiliates or other Persons approved by the Agent that have
executed tri-party agency agreements in substantially the form attached
as Exhibit 7.16 or otherwise in form reasonably acceptable to the Agent
(an "Agency Agreement"); provided, however, that any of the Credit
Parties may maintain deposit accounts with banking institutions other
than the Agent, the Banks, Bank Affiliates and Persons executing such
Agency Agreements so long as the aggregate amount of funds contained in
all such deposit accounts (other than any amounts in any Excluded
Deposit Accounts) does not exceed $5,000,000 at any time. The Borrower
shall provide the Agent, within twenty calendar days after the end of
each fiscal month, a report identifying all deposit accounts of the
Credit Parties and their collected balances as of the last day of the
preceding fiscal month.
SUBPART 2.13 Amendments to Section 8.1. Section 8.1 of the
Existing Credit Agreement is amended by (a) striking the word "and" at the end
of Section 8.1(i), (b) re-numbering existing Section 8.1 (j) as Section 8.1(k),
and (c) adding a new Section 8.1(j) which reads in its entirety as follows:
(j) Indebtedness arising under the Second Lien Credit
Agreement of up to an aggregate amount outstanding at any time not to
exceed $165,000,000; provided, and subject expressly to the conditions
precedent (1) that the Borrower shall prepay the Revolving Loans by an
amount equal to the Second Lien Indebtedness Prepayment Amount
simultaneously with the funding of the loans under Second Lien Credit
Agreement, such prepayment to be applied in accordance with Section
3.3(b)(iii) hereof; and (2) the Second Lien Administrative Agent, for
itself and on behalf of each of the Second Lien Lenders, shall have
executed the Intercreditor and Lien Subordination Agreement; and [.]
SUBPART 2.14 Amendment to Section 8.6(a). Section 8.6(a) of the
Existing Credit Agreement is amended by revising clause (iv) thereof 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 may make loans and/or advances to the other
Credit Parties in the ordinary course of business consistent with past
practices; provided, however, at no time shall the Borrower make, cause
or permit outstanding loans and/or advances from the Credit Parties to
▇▇▇▇▇ to exceed an aggregate amount, measured as of the last Business
Day of each calendar month, of more than $25.0 million for more than
any three (3) consecutive calendar months; and provided, further, that
the Borrower shall provide to the Agent, within twenty calendar days
after the end of each fiscal month, a written statement certifying the
amount of such outstanding loans or advances to ▇▇▇▇▇ as of the last
day of the preceding fiscal month; [.]
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SUBPART 2.15 Amendment to Section 8.7. Section 8.7 of the Existing
Credit Agreement is amended to read in its entirety as follows:
The Borrower will not permit any Consolidated Party to make
directly or indirectly any Restricted Debt Payment (except as permitted
by the Intercreditor and Lien Subordination Agreement) or any
Restricted Equity Payment. Notwithstanding any other term or provision
hereof, the Borrower will not permit any Consolidated Party to make (i)
any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares of
any class of Capital Stock of any Consolidated Party, now or hereafter
outstanding, or (ii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of Capital Stock of any Consolidated Party,
now or hereafter outstanding.
SUBPART 2.16 Amendment of Section 9.1(c). Section 9.1(c)(i) of the
Existing Credit Agreement is amended to read 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, 8.2, 8.4, 8.5, 8.6, 8.7, 8.8 or 8.15;
SUBPART 2.17 Addition of Exhibit 7.16. The Existing Credit
Agreement is further amended by adding a new Exhibit 7.16, substantially in the
form of Exhibit "B" attached to this Agreement.
PART III
AMENDMENTS TO COLLATERAL TRUST AGREEMENT
Effective on (and subject to the occurrence of) the Effective Date, the
Collateral Trust Agreement is hereby amended in accordance with this Part III.
Except as so amended, the Collateral Trust Agreement shall continue in full
force and effect.
SUBPART 3.1 Amendment of Definition of "Bank Obligations."
Section 1.1 of the Collateral Trust Agreement is amended by revising the
definition of the term "Bank Obligations" to read in its entirety as follows:
"Bank Obligations" means all of the indebtedness, obligations
and liabilities existing on the date hereof or arising from time to
time thereafter, whether direct or indirect, joint or several, actual,
absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of
law or otherwise, of the Grantors to any Bank Secured Party under or in
respect of any one or more of the Debt Instruments or the Collateral
Documents or in respect of any cash management, treasury, depository or
other commercial banking agreement (including, but not limited to, any
liabilities and obligations incurred in connection with automated
clearinghouse transfers and any advances made in respect of uncollected
funds).
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SUBPART 3.2 Amendment of Definition of "Excluded Property".
Section 1.1 of the Collateral Trust Agreement is further amended by deleting
from the definition of Excluded Property clause (iv) (which reads "(iv) the
Borrower's power distribution system located in ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇") and
replacing it with a new clause (iv) which reads "(iv) omitted;"[.]
SUBPART 3.3 Amendment of Section 8.2. Section 8.2 of the
Collateral Trust Agreement is amended by replacing existing clause (i) thereof
with a new clause (i) reading in its entirety as follows: "(i) the Trustee's
Fees as compensation for the Trustee's services hereunder and under the other
Collateral Documents and for administering the Trust Estate in the amount of
$75,000 per fiscal quarter, such fee being due and payable, and fully earned, on
the first Business Day of each fiscal quarter, and" [.]
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1 Effective Date. The amendments made by this Agreement
shall be and become effective on the Effective Date 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, the Guarantors and the
Agent shall have duly executed counterparts of this Agreement and provided
original copies thereof to the Agent.
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 Amendment Agreement, no
Default or Event of Default exists as of the Effective Date, 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 Consent included in the signature pages of this
Agreement, 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, the Intercreditor
and Lien Subordination Agreement 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 and the Intercreditor and Lien
Subordination Agreement.)
SUBPART 4.1.4 Intercreditor and Lien Subordination
Agreement. The Agent shall have received the original Intercreditor and
Lien Subordination Agreement executed by each of the Borrower, the
Foreign Borrowers, and the Second Lien Administrative Agent (for itself
and on behalf of the Second Lien Lenders). In addition, the Agent shall
have received (i) the prepayment amount required by Subpart 2.7 of this
Agreement and (ii) true and complete executed copies of the Second Lien
Credit Agreement, such agreement being satisfactory in form and content
to the Agent.
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SUBPART 4.1.5. Documentation. The Agent shall have
received all information, and such counterpart originals or such
certified or other copies of such originals, as it may reasonably
request. The Agent shall have received executed counterparts of all
related documentation. All legal matters incident to the transactions
contemplated by this Agreement shall be satisfactory to the counsel for
the Agent and to the Required Banks. Without limiting the generality of
the foregoing, the Agent shall have received the legal opinion of Weil,
Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Agent
and the Banks, in form and content reasonably satisfactory to the
Agent, its counsel, and the Required Banks. The Agent shall also have
received a revised executed Agent's Fee Letter with the Borrower.
SUBPART 4.1.6 Annual Budget. The Agent and the Required
Banks shall have received an updated Annual Budget for the Credit
Parties for the remainder of the current fiscal year, such Annual
Budget being in form and content satisfactory to the Agent and the
Required Banks and reflecting the effect of the Second Lien Loans and
the variance in the Credit Parties' financial performance from the
Annual Budget previously delivered to the Banks. For all purposes under
the Amended Credit Agreement, the Annual Budget delivered by the Credit
Parties as required hereunder shall supersede the form of Annual Budget
previously provided by the Credit Parties to the Banks.
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 1:00 p.m. Eastern daylight time on June 28, 2001. Such
fee shall be in the amount equal to 25 basis points (0.25%) of each
Bank's Revolving Commitment Percentage of the reduced Revolving
Committed Amount after giving effect to the mandatory prepayments
required by Section 3.3(b)(iii) of the Amended Credit Agreement.
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 and (b) the "Collateral Trust Agreement", "thereunder", "thereof" or
words of like import referring to the Collateral Trust Agreement shall mean the
Collateral Trust Agreement as amended hereby.
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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.
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
PricewaterhouseCoopers LLC) 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 5.6 Power Distribution System. Each of the Credit Parties
hereby grants to the Trustee a first priority lien and security interest in all
of its respective right, title and interest in the equipment, goods and other
personal property comprising the power distribution system more particularly
described on Exhibit "C" to this Agreement. This collateral shall secure the
repayment of the Credit Party Obligations, as defined in the Amended Credit
Agreement. The terms and conditions of the Collateral Trust Agreement, as
amended by this Agreement, shall be effective to this grant of a security
interest as if such assets were at all relevant times included in the collateral
originally encumbered under the Collateral Trust Agreement in favor of the
Banks.
SUBPART 5.7 Authorization of Collateral Trustee. By their
signature to this Agreement, the Required Banks authorize Bank of America, N.A.,
as Collateral Trustee under the Collateral Trust Agreement, to execute and
deliver this Agreement and the Intercreditor and Lien Subordination Agreement on
behalf of each of the Banks.
SUBPART 5.8 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 5.9 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.
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SUBPART 5.10 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 5.11 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 ▇▇▇▇▇▇▇ INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President-Finance
THE FOREIGN BORROWERS: WESTPOINT ▇▇▇▇▇▇▇ (UK) LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
WESTPOINT ▇▇▇▇▇▇▇ (EUROPE)
LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
THE BANKS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Bank and in its capacity as
Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BANC OF AMERICA SECURITIES, LLC,
as Agent for Bank of America, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[Signatures Continued]
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▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. Judge
----------------------------------------
Name: ▇▇▇▇▇ ▇. Judge
Title: Senior Vice President
SCOTIABANC INC.
By: /s/ ▇. ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Managing Director
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
SOCIETE GENERALE
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
ABN AMRO BANK, N.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Senior Vice President
By: /s/ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group Vice President
[signatures continued]
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SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director Senior Relationship Manager
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
AMSOUTH BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President AmSouth Bank
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Long
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Long
Title: Vice President
By: /s/ W. Jeffrey Vollach
----------------------------------------
Name: W. Jeffrey Vollach
Title: Senior Vice President
[signatures continued]
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NATIONAL WESTMINSTER BANK
PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
Title: Senior Corporate Manager
[signatures continued]
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