FIRST AMENDMENT
to
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
dated as of March 10, 1994
This FIRST AMENDMENT (the "Amendment"), dated as of May 31, 1994,
is by and among FIELDCREST CANNON, INC., a Delaware corporation (the
"Company"), the lenders listed on the signature pages hereto (the
"Lenders"), CONTINENTAL BANK N. A., PHILADELPHIA NATIONAL BANK and FIRST
UNION NATIONAL BANK OF NORTH CAROLINA, as lead managers for the Lenders
(collectively, the "Lead Managers"), and THE FIRST NATIONAL BANK OF BOSTON,
as agent for the Lenders (the "Agent").
WHEREAS, the Company, the Lenders, the Lead Managers and the
Agent are parties to that certain Third Amended and Restated Revolving
Credit Agreement, dated as of March 10, 1994 (the "Credit Agreement"); and
WHEREAS, the Company, the Lenders, the Lead Managers and the
Agent have agreed, subject to the terms and conditions set forth herein, to
amend certain provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(section mark)1. CERTAIN DEFINED TERMS. Capitalized terms
which are used herein without definition and which are defined in
the Credit Agreement shall have the same meanings herein as in the
Credit Agreement.
(section mark)2. AMENDMENT TO CREDIT AGREEMENT. (a) Section
1 of the Credit Agreement is hereby amended by adding the following new
definition in the appropriate place in the alphabetical sequence
thereof:
Letter of Credit Bank. With respect to those Letters of
Credit outstanding on May 31, 1994, FNBB and, with respect to
each Letter of Credit requested thereafter, FNBB or, at the
request of the Company and with the consent of the Agent, any
other Lender that agrees, in its sole and absolute discretion, to
issue such Letter of Credit pursuant to and in accordance with
the provisions of this Agreement.
(b) Section 1 of the Credit Agreement is hereby further amended
by deleting the word "Agent" where it appears in the definition of Uniform
Customs and substituting therefor the phrase "Letter of Credit Bank".
(c) Section 2.10.1 of the Credit Agreement is hereby, amended by
deleting the word "Agent" each place where it appears in such section, and
substituting therefor in each such place the phrase "Letter of Credit
Bank".
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(d) Section 2.10.2 of the Credit Agreement is hereby amended by
deleting such section in its entirety, and substituting therefor the
following:
(section mark)2.10.2. Reimbursement Obligation of the
Company. In order to induce the Letter of Credit Bank to
issue, extend and renew each Letter of Credit and the Lenders
to participate therein, the Company hereby agrees to
reimburse or pay to the Agent, for the account of the Letter
of Credit Bank or (as the case may be) the Lenders, with
respect to each Letter of Credit issued, extended or renewed
by the Letter of Credit Bank hereunder,
(a) except as otherwise expressly provided in
(section mark)2.10.2(b) and (c) hereof, on each date that any
draft presented under such Letter of Credit is honored by the Letter
of Credit Bank, or the Letter of Credit Bank otherwise makes a payment
with respect thereto, (i) the amount paid by the Letter of Credit Bank
under or with respect to such Letter of Credit, and (ii) the
amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Letter of Credit Bank or any Lender in
connection with any payment made by the Letter of Credit Bank or
any Lender under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not the termination) of
the Revolving Credit Loan Commitment Amount to an amount less
than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent for the
benefit of the Lenders and the Letter of Credit Bank as cash
collateral for all Reimbursement Obligations, and
(c) upon the termination of the Revolving Credit Loan
Commitment Amount, or the acceleration of the Reimbursement
Obligations with respect to all Letters of Credit in accordance
with (section mark)11 hereof, an amount equal to the then Maximum
Drawing Amount on all Letters of Credit, which amount shall be held by
the Agent for the benefit of the Lenders and the Letter of Credit
Bank as cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Agent at it's head
office referred to in (section mark)4.2 hereof in
immediately available funds. Interest on any and all
amounts remaining unpaid by the Company under this (section
mark)2.10.2 at any time from the date such amounts become due
and payable (whether as stated in this (section
mark)2.10.2 by acceleration or otherwise) until payment in
full (whether before or after judgment) shall be payable to
the Letter of Credit Bank or (as the case may be) the
Lenders, on demand at the rate specified in (section mark)4.1
hereof for overdue principal on the Loans.
(e) Section 2.10.3 of the Credit Agreement as hereby amended by
deleting such section in its entirety, and substituting therefor the
following:
(section mark)2.10.3. Letter of Credit Payments. If any
draft shall be presented or other demand for payment shall
be made under any Letter of Credit, the Letter of Credit
Bank shall notify the Company of the date and amount of the
draft
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presented or demand for payment and of the date and time when
it expects to pay such draft or honor such demand for
payment. If the Company fails to reimburse the Letter of
Credit Bank as provided in (section mark)2.10.2 hereof on or
before the date that such draft is paid or other payment is
made by the Letter of Credit Bank, the Letter of Credit Bank
may at any time thereafter notify the Lenders of the amount
of any such Unpaid Reimbursement Obligation. No later than
3:00 p.m. (Boston time) on the Business Day next following
the receipt of such notice, each Lender shall make
available to the Agent, at its head office referred to in
(section mark)4.2 hereof, in immediately available funds and
for the benefit of the Letter of Credit Bank, such Lender's
Commitment Percentage of such Unpaid Reimbursement
Obligation, together with an amount equal to the product of
(a) the average, computed for the period referred to in
clause (c) below, of the weighted average interest rate paid
by the Letter of Credit Bank for federal funds acquired by
the Letter of Credit Bank during each day included in such
period, times (b) the amount equal to such Lender's
Commitment Percentage of such Unpaid Reimbursement
Obligation, times (c) a fraction, the numerator of which
is the number of days that elapse from and including the
date the Letter of Credit Bank paid the draft presented
for honor or otherwise made payment to the date on which
such Lender's Commitment Percentage of such Unpaid
Reimbursement obligation shall become immediately available
to the Letter of Credit Bank, and the denominator of which
is 360. The responsibility of the Letter of Credit Bank to
the Company and the Lenders shall be only to determine that
the documents (including each draft) delivered under each
Letter of Credit in connection with such presentment shall
be in conformity in all material respects with such Letter of
Credit.
(f) Section 2.10.4 of the Credit Agreement is hereby amended by
deleting the word "Agent" each place where it appears in such section, and
substituting therefor in each such place the phrase "Letter of Credit
Bank".
(g) Section 2.10.5 of the Credit Agreement is hereby amended by
deleting the word "Agent" each place where it appears in such section, and
substituting therefor in each such place the phrase "Letter of Credit
Bank".
(h) Section 2.10.6 of the Credit Agreement is hereby amended by
deleting the second sentence of such section in its entirety, and
substituting therefor the following:
In addition, the Company shall pay to the Letter of Credit Bank
for its own account, at such time or times as such charges are
customarily made by the Letter of Credit Bank, its standard
processing, negotiating, amendment and administrative fees,
including, without limitation, reasonable legal fees and all fees
in respect of capital costs incurred by the Letter of Credit Bank
in connection with such Letters of Credit (each of the foregoing
fees shall be referred to herein, collectively, as the "Letter of
Credit Fees").
(i) Section 4.2 of the Credit Agreement is hereby amended by
inserting immediately following the phrase "any Letter of Credit Fee" where
such phrase appears in
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the second line thereof the following:
(other than any Letter of Credit Fee payable by the
Company pursuant to the second sentence of (section
mark)2.10.6 hereof, which payment shall be made by the Company
directly to the applicable Letter of Credit Bank in
immediately available funds)
(section mark)3. REPRESENTATIONS AND WARRANTIES. The
Company hereby represents and warrants to the Lenders as follows:
(a) Representations and Warranties. The representations
and warranties contained in (section mark)6 of the Credit Agreement were
true and correct in all material respects when made. The
representations and warranties contained in (section mark)6 of the
Credit Agreement, as amended hereby, are true and correct on the date
hereof.
(b) Enforceability. The execution and delivery by the Company
of this Amendment, and the performance by the Company of this Amendment and
the Credit Agreement, as amended hereby, are within the corporate powers of
the Company and have been duly authorized by all necessary corporate action
on the part of the Company. This Amendment and the Credit Agreement, as
amended hereby, are valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting the enforcement of creditors' rights in general.
(c) No Default. No Default or Event of Default has occurred and
is continuing and no Default or Event of Default will exist after the
execution and delivery of this Amendment or after the consummation of the
transactions contemplated hereby.
(section mark)4. EFFECTIVENESS. This Amendment shall become
effective as of the date hereof upon satisfaction of each of the
conditions precedent set forth in this (section mark)4:
(a) Delivery. The Company and Lenders constituting the Majority
A Lenders shall have executed and delivered this Amendment.
(b) Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Amendment and all documents
incident hereto shall be satisfactory in form and substance to the Agent,
and the Agent shall have received all information and such counterpart
originals or certified or other copies of such documents as the Agent may
reasonably request.
(section mark)5. MISCELLANEOUS PROVISIONS. (a) Except as
otherwise expressly provided by this Amendment, all of the terms,
conditions and provisions of the Credit Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that
the Credit Agreement, as amended hereby, shall continue in full force
and effect, and that this Amendment and such Credit Agreement shall be
read and construed as one instrument.
(b) This Amendment is intended to take effect as an agreement
under seal and shall be construed according to and governed by the laws of
the Commonwealth of
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Massachusetts.
(c) This Amendment may be executed in any number of
counterparts, but all such counterparts shall together constitute but one
instrument. In making proof of this Amendment it shall not be necessary to
produce or account for more than one counterpart signed by each party
hereto by and against which enforcement hereof is sought.
(d) The Company hereby agrees to pay to the Agent, on demand by
the Agent, all reasonable out-of-pocket costs and expenses incurred or
sustained by the Agent in connection with the preparation of this Amendment
and the documents referred to herein (including reasonable legal fees).
IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first above written.
FIELDCREST CANNON, INC.
By:/s/ T. R. Staab
Title: Vice President and Chief
Financial Officer
THE FIRST NATIONAL BANK OF
BOSTON, as Agent
By:/s/ Mitchell B. Feldman
Title: Director
THE FIRST NATIONAL BANK OF
BOSTON
By:/s/ Mitchell B. Feldman
Title: Director
CONTINENTAL BANK N. A., individually
and as Lead Manager
By:/s/ Wayne H. Riess
Title: Vice President
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PHILADELPHIA NATIONAL BANK,
individually and as Lead Manager
(incorporated as CoreStates Bank, N. A.)
By:/s/ James P. Richards
Title: Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, individually and as
Lead Manager
By:/s/ Richard J. Rizzo, Jr.
Title: Vice President
BANK OF MONTREAL
By:/s/ Michael J. Love
Title: Director
MELLON BANK, N. A.
By:/s/ Frederick W. Okie, Jr.
Title: Vice President
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