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EXHIBIT 99
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THIRD AMENDMENT
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This THIRD AMENDMENT (this "Third Amendment") is dated as of January
16, 2004 and is entered into by and between DAN RIVER INC., a Georgia
corporation (the "Borrower") and DEUTSCHE BANK TRUST COMPANY AMERICAS, in
its capacity as the Agent for the Lenders under the Credit Agreement
referred to below (in such capacity, the "Agent").
RECITALS:
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WHEREAS, pursuant to that certain Credit Agreement, dated as of April
15, 2003, by and among (among others) the Borrower, the Agent and the
lenders from time to time party thereto (collectively, the "Lenders") (as
amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"), the Lenders have agreed to make certain Loans and
issue certain Letters of Credit to and for the benefit of the Borrower;
WHEREAS, the Borrower has requested that the Majority Lenders agree to
amend the Credit Agreement to reduce the Excess Availability requirement
contained in Section 9.1(l) of the Credit Agreement to $5 million for the
period commencing on the effectiveness of this Third Amendment and ending
on March 8, 2004 in order to accommodate seasonal borrowing needs;
WHEREAS, the Majority Lenders, on the terms and subject to the
conditions set forth in this Third Amendment, are willing to so amend the
Credit Agreement; and
WHEREAS, unless otherwise defined herein, capitalized terms used in
this Third Amendment shall have the same definitions as are contained in
the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and incorporating the
foregoing recitals herein, the parties hereto agree as follows.
ARTICLE I.
ACKNOWLEDGMENTS
1.1 Acknowledgment of Indebtedness. The Borrower acknowledges that
as of January 13, 2004, the Borrower was indebted to the Secured Parties in
the aggregate principal amount of $110,265,766.83 in the form of
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outstanding Loans and Letters of Credit under the Credit Agreement
(together with interest thereon and certain fees payable in connection
therewith, but exclusive of any expenses and other amounts payable
thereunder), as more particularly set forth on Schedule 1.2 attached
hereto. The Borrower acknowledges such amounts are outstanding under the
Credit Agreement and continue to be owed to the Secured Parties along with
all other amounts for accrued interest, fees, costs and expenses and that
such other amounts shall continue to accrue under the Credit Agreement.
1.2 Acknowledgment of Liens and Grant of Security Interests. The
Borrower acknowledges that it has granted the Agent, for the benefit of the
Secured Parties, security interests in and liens upon the Collateral
pursuant to the Collateral Documents, which security interests and liens
are perfected and, except where otherwise permitted thereunder, of the
first priority and which security interests and liens secure the
obligations of the Borrower and the other Credit Parties to the Secured
Parties under the Credit Documents. The Borrower further acknowledges the
prior execution and delivery of the Collateral Documents to the Agent, for
the benefit of the Secured Parties, and that, notwithstanding the execution
and delivery of this Third Amendment, the Collateral Documents remain in
full force and effect and the rights and remedies of the Agent and the
Secured Parties thereunder, the obligations of the Borrower and the other
Credit Parties thereunder, and the liens and security interests created and
provided for thereunder remain in full force and effect and shall not be
affected, impaired or discharged hereby.
ARTICLE II.
AMENDMENT
Subject to the terms and conditions set forth in this Third Amendment
(including, without limitation, Article V) and in reliance upon the
representations and warranties of the Borrower set forth herein, the Credit
Agreement is hereby amended as follows:
2.1 Additional Defined Term. Section 1.1 of the Credit Agreement is
hereby amended by inserting the following defined term in appropriate
alphabetical order:
(a) ""Suppressed Availability" shall mean, at any time, as set forth
on the most recent Borrowing Base Certificate delivered to the Agent, the
sum of (i) the result obtained by subtracting from the "Inventory Borrowing
Base" set forth thereon the "Calculated value Inventory Limitation at 60%
of Maximum" set forth thereon and (ii) the aggregate amount of all Accounts
of the Borrower deemed ineligible by virtue of the "Concentration
limitations" set forth on Schedule A thereto; it being understood that, in
the event it is not possible to calculate Suppressed
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Availability from the most recent Borrowing Base Certificate delivered to
the Agent, for purposes of Section 9.1(l) "Suppressed Availability" shall
be deemed to be $0."
2.2 Event of Default. Article IX of the Credit Agreement is hereby
amended by deleting clause (l) thereof and replacing it with the following
new clause (l):
"(l) (i) at any time on or prior to March 8, 2004, (A) Excess
Availability shall be less than $5,000,000 or (B) the sum of (1) Excess
Availability and (2) Suppressed Availability shall be less than $15,000,000
or (ii) at any time after March 8, 2004, Excess Availability shall be less
than $15,000,000."
ARTICLE III.
RELEASE AND INDEMNITY
3.1 Recognizing and in consideration of the Agent's agreement (upon
the consent of the Majority Lenders) to agree to the amendments set forth
in this Third Amendment, the Borrower, on its own behalf and on behalf of
all persons or entities claiming by, through, or under the Borrower, does
hereby waive and release each of the Secured Parties and their respective
officers, attorneys, agents, and employees from any liability, suit,
damage, claim, loss or expense of any kind or nature whatsoever and
howsoever arising that the Borrower ever had or now has against any of them
arising out of or relating to any Secured Party's or the Agent's acts or
omissions with respect to this Third Amendment, the Credit Agreement, the
other Credit Documents or any other matters described or referred to herein
or therein. The Borrower further agrees to indemnify and hold the Agent
and each Secured Party, and their respective officers, attorneys, agents,
and employees harmless from any loss, damage, judgment, liability or
expense (including counsel fees) suffered by or rendered against the Agent,
the other Secured Parties or any of them on account of anything arising out
of this Third Amendment, the Credit Agreement, the other Credit Documents
or any other document delivered pursuant hereto or thereto as of and
including the date of this Third Amendment.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Agent and the other
Lenders as of the date hereof as follows:
4.1 Corporate Power. The Borrower has the requisite corporate power
and authority to execute and deliver this Third Amendment and to perform
its obligations hereunder and under the Credit Documents (as amended
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hereby). The execution, delivery and performance by the Borrower of this
Third Amendment, and the performance by the Borrower and by each other
Credit Party of each Credit Document (as amended hereby) to which it is a
party have been duly approved by all necessary corporate action of such
Credit Party and no other corporate proceedings on the part of such Credit
Party are necessary to consummate such transactions.
4.2 Authorization and Enforceability. This Third Amendment has been
duly executed and delivered by the Borrower. Each of this Third Amendment
and each Credit Document (as amended hereby) is the legal, valid and
binding obligation of each Credit Party party hereto and thereto,
enforceable against such Credit Party in accordance with its terms, and is
in full force and effect.
4.3 Defaults. No event has occurred and is continuing that
constitutes a Default or Event of Default.
4.4 Schedules and other Information. All information contained in
any schedule attached to this Third Amendment or subsequently delivered
pursuant this Third Amendment is or will be complete and accurate as of the
date hereof or thereof.
ARTICLE V.
CONDITIONS TO EFFECTIVENESS
This Agreement shall not be effective until each of the following
conditions precedent shall have been satisfied.
5.1 Majority Lender Consent. The Majority Lenders shall have
consented in writing to the execution and delivery of this Third Amendment
by the Agent (or the Agent shall have received evidence satisfactory to it
that such written consent has been provided).
5.2 Execution. The Agent, on behalf of the Lenders, shall have
executed this Third Amendment and shall have received counterparts of this
Third Amendment executed by the Borrower.
5.3 Representations and Warranties. Each of the representations and
warranties in Article V above shall be true and correct as of the date of
this Third Amendment.
5.4 Payment of Fees and Expenses. The Borrower shall have paid all
of the accrued fees and expenses of the Agent and the Lenders (including,
without limitation, the fees and disbursements of counsel for the Agent)
for which invoices shall have been submitted.
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5.5 Legal Opinion. The Agent and the Lenders shall have received a
legal opinion from appropriate counsel to the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent, dated as of
the date hereof, as to certain customary matters, including, without
limitation, the due authorization, execution, delivery and enforceability
of this Third Amendment, the enforceability of the Credit Agreement, as
amended hereby, and no conflict with laws or material agreements.
ARTICLE VI.
MISCELLANEOUS.
6.1 Reference to and Effect on Credit Documents. On and after the
effectiveness of this Third Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of similar
import referring to the Credit Agreement, and each reference in each of the
other Credit Documents to "the Credit Agreement", "thereunder", "thereof"
or words of similar import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended by this Third
Amendment. Except as otherwise expressly set forth herein, the Credit
Agreement and each other Credit Document shall continue to be, and shall
remain, unaltered and in full force and effect in accordance with their
terms and are hereby confirmed and ratified. To the extent that any
existing provision of the Credit Agreement or any other Credit Document is
inconsistent with the specific provisions of this Third Amendment, the
provisions of this Third Amendment shall control.
6.2 No Novation. This Third Amendment shall not be deemed or
construed to be a satisfaction, restatement, novation or release of the
Credit Agreement or of any of the other Credit Documents or a waiver by the
Agent or any Lender of any of the defenses, rights or remedies of the Agent
and the Lenders under the Credit Agreement or any of the other Credit
Documents or at law or in equity or otherwise.
6.3 Reaffirmation. The Borrower hereby reaffirms each and every
covenant, condition, obligation and provision set forth in the Credit
Documents.
6.4 Additional Action. The parties agree to take such further action
to execute and deliver to each other such additional agreements,
instruments and documents as may reasonably be required to carry out the
purposes and intent of this Third Amendment.
6.5 Headings. Section and Article headings in this Third Amendment
are included herein for convenience of reference only and shall not
constitute a part of this Third Amendment for any other purpose.
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6.6 Severability. Any provision of this Third Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
6.7 Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
6.8 Counterparts. This Third Amendment may be executed in any number
of counterparts, and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the same
instrument. Delivery of an executed counterpart of a signature page to
this Third Amendment by facsimile shall be effective as delivery of a
manually executed counterpart of this Third Amendment.
6.9 Construction. The Borrower acknowledges that it has been
represented by its own legal counsel in connection with the negotiation,
execution and delivery of this Third Amendment, that it has exercised
independent judgment with respect to this Third Amendment, and that it has
not relied on the Agent or any Lender or on the Agent's or any Lender's
counsel for any advice with respect to this Third Amendment.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be executed and delivered by their proper and duly authorized
officers as of the date first set forth above.
BORROWER:
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DAN RIVER INC., a Georgia corporation
By:-------------------------
Name:
Title:
AGENT:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, in its capacity as Agent for
and on behalf of the Lenders
By:--------------------------
Name:
Title:
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SCHEDULE 1.2
PRINCIPAL, INTEREST AND UNUSED LINE FEES
ON LOANS AND LETTERS OF CREDIT
Term Loans $ 35,714,285.50
Revolving Loans $ 68,230,000.00
Letters of Credit $ 6,119,811.40
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PRINCIPAL AMOUNT OF
LOANS AND LETTERS OF
CREDIT OUTSTANDING: $ 110,064,096.90
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Term Loan Interest $ 65,734.12
Revolving Loan Interest $ 118,588.13
Unused Line Fee (Revolving Commitments) $ 11,439.05
Letter of Credit Fees $ 5,908.63
INTEREST AND UNUSED
LINE FEES OUTSTANDING: $ 201,669.93
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TOTAL PRINCIPAL, INTEREST AND
UNUSED LINE FEES OUTSTANDING: $ 110,265,766.83
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