Exhibit 10.54
WAIVER AGREEMENT
This Waiver 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, as amended by the First
Amendment Agreement, dated as of March 31, 2003 (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 waive
certain provisions 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:
"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
WAIVER OF SECOND LIEN CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Effective Date, the
certain provisions of the Second Lien Credit Agreement are hereby waived as set
forth in this Part II. Except for such waivers, the Second Lien Credit Agreement
shall continue in full force and effect.
SUBPART 2.1. Waivers of Section 6.1. The Borrower's obligations: (i)
pursuant to Section 6.1(a) to deliver the financial statements of the
Consolidated Parties for the Fiscal Year ended December 31, 2002 together with
an unqualified going concern opinion of its auditors with respect thereto and
(ii) pursuant to Section 6.1(f) to deliver the auditor's certificate identifying
any Default or Event of Default, are hereby waived through and including June
10, 2003, provided that (i) such financial statements and audit report, and the
auditor's certificate identifying any Default or Event of Default, shall have
been delivered on or before June 11, 2003 and (ii) no other Default or Event of
Default shall exist as of the date hereof or shall have arisen subsequent to the
date hereof and on or before June 10, 2003.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effective Date. The waivers 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.
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. Existing Credit Agreement. The Agent shall have received
a true and complete copy of a waiver with respect to certain provisions of the
Existing Credit Agreement by the requisite lenders thereunder, and such waiver
shall have become effective in accordance with its terms.
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 with respect to the waiver contained herein, 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 give effect to this waiver.
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: Senior Vice President-Finance
and Chief Financial Officer
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: Managing Director
ALBION ALLIANCE
By:
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Name:
Title:
BELLPORT CAPITAL PARTNERS LP
By:
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Name:
Title:
CP CAPITAL INVESTMENTS, LLC
By:
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Name:
Title:
DARMEL MULTI-STRATEGY PARTNERS LP
By:
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Name:
Title:
GE CAPITAL COMMERCIAL FINANCE
By:
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Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 IIA, L.P.
By: GSC Recovery IIA GP, L.P.,
its general partner
By: GSC RIIA, LLC,
its general partner
By: GSCP (NJ) Holdings, L.P.,
its sole member
By: GSCP (NJ), Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
GSC RECOVERY IIA (SECOND CLOSE)
By:
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Name:
Title:
GSC RECOVERY II, L.P.
By: GSC Recovery II GP, L.P.,
its general partner
By: GSC RII, LLC,
its general partner
By: GSCP (NJ) Holdings, L.P.,
its sole member
By: GSCP (NJ), Inc.,
its general partner
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:
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Name:
Title:
MARINER LDC
By:
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Name:
Title:
▇▇▇▇▇▇▇ 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 & Principal