Exhibit 10.53
FIRST AMENDMENT AGREEMENT
This First Amendment Agreement, dated as of March 31, 2003 (this
"Agreement"), is among WESTPOINT ▇▇▇▇▇▇▇ INC., a Delaware corporation (the
"Borrower"), each of the Lenders signatories hereto, each of the Subsidiary
Guarantors signatories hereto, and Deutsche Bank Trust Company Americas (f/k/a
Bankers Trust Company), as Administrative Agent (the "Agent").
RECITALS:
A. Pursuant to that certain Credit Agreement, dated as of June 29,
2001, among the Borrower, the lending and financial institutions party thereto
from time to time (the "Lenders"), and the Agent (the "Second Lien Credit
Agreement"), the Lenders agreed to make loans to the Borrower.
B. The Borrower has requested that the Required Lenders agree to make
certain amendments to the Second Lien Credit Agreement.
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 Second Lien Credit
Agreement as amended hereby.
"Effective Date" shall mean the date upon which each of the
conditions set forth in Part III 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 SECOND LIEN CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Effective Date, the
Second Lien Credit Agreement is hereby amended in accordance with this Part II.
Except as so amended, the Second Lien Credit Agreement shall continue in full
force and effect.
SUBPART 2.1. Amendment of Section 7.6. Section 7.6 of the Second Lien
Credit Agreement is amended by deleting each of the two provisos appearing in
Section 7.6(a)(vii), causing Section 7.6(a)(vii) to read in its entirety as
follows:
(vii) 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 2.2. Waiver of Section 6.1(a). The Borrower's obligation to
deliver audited financial statements and an unqualified opinion of its auditors
pursuant to Section 6.1(a) is hereby extended to April 15, 2003.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effective Date. The amendment made by this Agreement shall
be deemed effective as of December 31, 2002 and the waiver contained in this
Agreement shall be deemed effective as of March 31, 2003 when (i) all of the
conditions set forth in this Subpart 3.1 shall have been satisfied, and (ii) the
Required Lenders, the Borrower, and the Agent shall have duly executed
counterparts of this Agreement and provided original copies thereof to the
Agent.
SUBPART 3.1.1. Closing Certificate. The Agent shall have
received a certificate from the Borrower and certifying that (i) after
giving effect to this 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 4.4 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 3.1.2. Guarantors' Consent. Each of the Guarantors
shall have executed the consent included in the signature pages of this
Agreement (the "Consent"), and the Agent shall have received such
Consent executed by each Guarantor.
SUBPART 3.1.3. Amendment of Existing Credit Agreement. The
Agent shall have received a true and complete copy of an amendment to
the Existing Credit Agreement, and a waiver by the requisite lenders
thereunder, with respect to (a) any default existing under Section
8.4(a)(iv) thereof regarding permitted levels of intercompany
indebtedness owed by ▇▇▇▇▇ to the Borrower, and (b) any default
existing under Section 7.1(a) thereof regarding the delivery of annual
financial statements and an unqualified audit opinion.
SUBPART 3.1.4. Amendment Fee. An amendment fee shall be paid
to those Lenders executing and delivering this Agreement to the Agent
prior to 1:00 p.m. (Eastern time) on April 4, 2003. Such fee shall be
in the amount equal to 25 basis points (0.25%) of each such Lender's
outstanding Loans as of the date of this Agreement.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Agreement to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Agreement.
SUBPART 4.2. Instrument Pursuant to Second Lien Credit Agreement. This
Agreement is a document executed pursuant to the Second Lien Credit Agreement
and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Second Lien Credit Agreement.
SUBPART 4.3. Credit Documents. The Borrower 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 Second Lien Credit Agreement
shall mean the Amended Credit Agreement.
SUBPART 4.4. 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
Second Lien 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 4.5. 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) 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 Lenders and the
Agent hereunder.
SUBPART 4.6. 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 4.7. 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 4.8. 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 4.9. 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 ▇▇▇▇▇▇▇ INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Sr. V.P. & Treasurer
ACKNOWLEDGED AND AGREED:
THE LENDERS: DEUTSCHE BANK TRUST COMPANY AMERICAS
(f/k/a BANKERS TRUST COMPANY), in its
capacity as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ALBION ALLIANCE
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ DiBose
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Name: ▇▇▇▇▇▇▇▇▇▇▇ DiBose
Title: Vice President
BELLPORT CAPITAL PARTNERS LP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
CP CAPITAL INVESTMENTS, LLC
By:
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Name:
Title:
DARMEL MULTI-STRATEGY PARTNERS LP
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: President of the General Partner
GE CAPITAL COMMERCIAL FINANCE
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Duly Authorized Signatory
▇▇▇▇▇▇▇ SACHS PROFIT SHARING MASTER TRUST
By:
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Name:
Title:
GSC EUROPEAN MEZZANINE LUXEMBOURG I SARL
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
GSC EUROPEAN MEZZANINE LUXEMBOURG II SARL
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
GSC EUROPEAN MEZZANINE LUXEMBOURG III SARL
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
GSC RECOVERY II, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
GSC RECOVERY IIA (SECOND CLOSE)
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
GSC RECOVERY IIA LP
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
HH MANAGED ACCOUNT 6 LIMITED
By:
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Name:
Title:
MARATHON SPECIAL OPPORTUNITY FUND
By: /s/ ▇▇▇▇▇ ▇. Hanover
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Name: ▇▇▇▇▇ ▇. Hanover
Title: Authorized Signatory
MARINER LDC
By: /s/ ▇. ▇▇▇▇ ▇▇
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Name: ▇. ▇▇▇▇ ▇▇
Title: Director
▇▇▇▇▇▇▇ IAM LTD
By:
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Name:
Title:
PEQUOT ENDOWEMENT FUND LP
By:
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Name:
Title:
PEQUOT INSTITUTIONAL FUND, INC.
By:
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Name:
Title:
PEQUOT INTERNATIONAL FUND, INC.
By:
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Name:
Title:
PEQUOT PARTNERS FUND, LP
By:
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Name:
Title:
PEQUOT SPECIAL OPPORTUNITIES FUND, LP
By:
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Name:
Title:
SATELLITE SENIOR INCOME FUND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer