AMENDMENT NO.1 OF CREDIT AND GUARANTY AGREEMENT
EXHIBIT 10.9
THE XXXXXXX XXXXXX COMPANY
XXXXXX HOLDINGS, INC.
CARTER'S IMAGINATION, INC.
CARTER'S DE SAN XXXXX, INC.
The Proscenium
0000 Xxxxxxxxx Xxxxxx XX, Xxxxx 000
Xxxxxxx, XX 00000
AMENDMENT NO.1 OF
CREDIT AND GUARANTY AGREEMENT
March 27, 2002
FLEET NATIONAL BANK
as Administrative Agent under the
Credit Agreement defined herein
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Each of the Xxxxxxx Xxxxxx Company (the "COMPANY") and Xxxxxx Holdings,
Inc. ("HOLDINGS"), each Massachusetts corporation, and Carter's De San Xxxxx,
Inc. and Carter's Imagination, Inc., each a Delaware corporation, hereby agrees
with you as follows:
1. REFERENCE TO CREDIT AGREEMENT AND DEFINITIONS. Reference is made to the
Credit and Guaranty Agreement dated as of August 15, 2001 among the Company,
Holdings, certain subsidiaries of the Company, as Guarantors, the Lenders from
time to time party thereto, Xxxxxxx Xxxxx Credit Partners L.P., as Lead
Arranger, Book Runner, and as Syndication Agent, Fleet National Bank, as
Administrative Agent and as Collateral Agent, and BNP Paribas, as Documentation
Agent (the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.
2. RECITAL. The Company has advised the Lenders that it desires certain
amendments to the Credit Agreement in order to permit directors of the Company
and/or Holdings to invest cash in Holdings without causing the Company to prepay
the Loans or reduce the Revolving Commitments. The Requisite Lenders have agreed
to amend the relevant provision of the Credit Agreement.
3. AMENDMENTS. The Credit Agreement is hereby amended, effective as of the
date hereof, as follows:
3.1 Section 2.14(c) of the Credit Agreement is amended to read in its
entirety as follows:
(c) ISSUANCE OF EQUITY SECURITIES. On the date of receipt by
Holdings of any Cash proceeds from a capital contribution to, or the
issuance of any Capital Stock of, Holdings (other than (i) pursuant to any
employee stock or stock option compensation plan, (ii) in connection with
Permitted Acquisitions, or (iii) up to an aggregate of $2,500,000 of
proceeds from (a) the issuance of any Capital Stock to directors of
Holdings and/or the Company and (b) pursuant to any stock option
compensation plan to directors of Holdings and/or the Company), Company
shall prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.15(b) in an aggregate amount
equal to 50% of such proceeds, net of underwriting discounts and
commissions and other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses.
4. REPRESENTATIONS AND WARRANTIES. In order to induce you to enter into this
amendment, the Company and Holdings hereby represent and warrant that (i) each
of the representations and warranties contained in Section 4 of the Credit
Agreement is true and correct on the date hereof, except for representations and
warranties that speak as of a specific date in which they were true and correct
on such earlier date and (ii) after giving effect to this amendment no Default
or Event of Default under the Credit Agreement shall have occurred and be
continuing.
5. MISCELLANEOUS. Except as expressly modified by this amendment, the Credit
Agreement and each of the other Credit Documents are and remain unchanged and in
full force and effect. This amendment may be executed in any number of
counterparts, which together shall constitute one instrument, shall be Credit
Document, shall be governed by and construed in accordance with the laws of the
State of New York (without giving effect to the conflict of laws rules of any
jurisdiction) and shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
If the foregoing corresponds with your understanding of our agreement,
please sign this letter and the accompanying copies thereof in the appropriate
space below and return the same to the undersigned. This letter shall become a
binding agreement among each of the Lenders and the Agent when both the Company
and the Agent shall have one or more copies hereof executed by each of the
Company and the Agent on behalf of the Requisite Lenders.
2
Very truly yours,
THE XXXXXXX XXXXXX COMPANY
XXXXXX HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President & CFO
CARTER'S DE SAN XXXXX, INC.
CARTER'S IMAGINATION, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President & CFO
S-1
FLEET NATIONAL BANK,
as Administrative Agent, Collateral Agent,
Swing Line Lender, Issuing Bank and a Lender
BY: /s/ [ILLEGIBLE]
----------------
Name: [ILLEGIBLE]
Title: V.P.
S-2
XXXXXXX XXXXX CREDIT PARTNERS L.P.
as Lead Arranger, Syndication Agent and a
Lender
By: /s/ [ILLEGIBLE]
-----------------
Authorized Signatory
S-3
ARCHIMEDES FUNDING IV (CAYMAN), LTD.,
by: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Xxxx X. X'Xxxxxx
----------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
S-8
ARCHIMEDES FUNDING III, LTD.,
by: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Xxxx X. X'Xxxxxx
--------------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
S-9
Ares V CLO LTD.
By: Ares CLO GP V, LLC
Its Managing Member
By: /s/ Xxxx X. Xxxxxxx
---------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
BLACK DIAMOND INTERNATIONAL FUNDING LTD.,
By: /s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Director
S-12
BNP PARIBAS,
By: /s/ Xxxxxx Xxxxxxx
---------------------
Name: XXXXXX XXXXXXX
Title: Director
Merchant Banking Group
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Name:
Title:
S-13
CIT LENDING SERVICES
CORPORATION (ILLINOIS),
By: /s/ Xxxx X. Xxxxxx, XX
-----------------------
Name: Xxxx X. Xxxxxx, XX
Title: Vice President
By: Denali Capital LLC, managing member of DC
Funding Partners LLC, collateral manager for,
DENALI CAPITAL CLO I, LTD.,
Denali Capital LLC, managing member of
DC Funding Partners LLC, portfolio
manager for DENALI CAPITAL CLO I,
LTD.
By: /s/ Xxxx Xxxxxxx
------------------
Name: Xxxx Xxxxxxx
Title: Chief Credit Officer
S-15
XXXXXX HIGH YIELD CDO 2001-I,
By: Prudential Investment Management,
Inc., as attorney -in-fact.
By: /s/ Xxxx Xxxx
---------------
Name: Xxxx Xxxx
Title: Vice President.
S-16
FLAGSHIP CLO II,
By: /s/ [ILLEGIBLE]
-----------------
Name: [ILLEGIBLE]
Title: As attorney in Fact
X-00
XXXXXXXX XXX-0000-0,
By: Flagship Capital Mgt, Inc
By: /s/ [ILLEGIBLE]
-----------------
Name: [ILLEGIBLE]
Title: Director
S-18
FRANKLIN CLO II, LIMITED,
as Documentation Agent and a Lender
By: /s/ [ILLEGIBLE]
-----------------
Name:
Title:
S-20
FRANKLIN FLOATING RATE DAILY
ACCESS FUND
By: /s/ [ILLEGIBLE]
-----------------
Name:
Title:
S-21
FRANKLIN FLOATING RATE MASTER
SERIES,
By: /s/ [ILLEGIBLE]
-----------------
Name:
Title:
S-22
FRANKLIN FLOATING RATE TRUST,
By: /s/ [ILLEGIBLE]
-----------------
Name:
Title:
S-23
GMAC BUSINESS CREDIT, LLC,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
S-24
Sankaty Advisors, LLC as Collateral
Manager for Great Point CLO 1999-1
LTD., as Term Lender
By: /s/ Xxxxx X. Xxxxx
---------------------
Name: XXXXX X. XXXXX
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
X-00
XXXXXXX XXXX FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
-------------------
Name: XXX X. XXXXXX
Title: AUTHORIZED AGENT
S-27
JUPITER FUNDING TRUST,
as a Lender
By: /s/ Xxx X. Xxxxxx
-------------------
Name: XXX X. XXXXXX
Title: AUTHORIZED AGENT
S-29
KZH CNC LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------
Name: XXXXXXX XXXXXXXXX
Title: AUTHORIZED AGENT
S-30
ENDURANCE CLO 1, LTD.,
by: ING Capital Advisors LLC, as Portfolio
Manager
By: /s/ Xxxx X. X'Xxxxxx
----------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
KZH ING-2 LLC
By:
----------------------
Name:
Title:
KZH ING-3 LLC
By:
----------------------
Name:
Title:
S-31
KZH ING-1 LLC
By:
----------------------
Name:
Title:
KZH ING-2 LLC
By:
----------------------
Name:
Title:
KZH ING-3 LLC
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------
Name: XXXXXXX XXXXXXXXX
Title: AUTHORIZED AGENT
S-31
KZH PONDVIEW LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------
Name: XXXXXXX XXXXXXXXX
Title: AUTHORIZED AGENT
KZH RIVERSIDE LLC
By:
------------------------
Name:
Title:
KZH WATERSIDE LLC
By:
------------------------
Name:
Title:
S-32
KZH PONDVIEW LLC
By:
------------------------
Name:
Title:
KZH RIVERSIDE LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------
Name: XXXXXXX XXXXXXXXX
Title: AUTHORIZED AGENT
KZH WATERSIDE LLC
By:
----------------------
Name:
Title:
AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT EXECUTION
S-32
KZH PONDVIEW LLC
By:
----------------------
Name:
Title:
KZH RIVERSIDE LLC
By:
----------------------
Name:
Title:
KZH WATERSIDE LLC
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------
Name: XXXXXXX XXXXXXXXX
Title: AUTHORIZED AGENT
S-32
LAGUNA FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
----------------------
Name: XXX X. XXXXXX
Title: AUTHORIZED AGENT
S-33
LONG LANE MASTER TRUST IV,
By: Fleet National Bank as Trust
Administrator
By: /s/ [ILLEGIBLE]
----------------------
Name: [ILLEGIBLE]
Title:
S-36
NEMEAN CLO, LTD.,
by: ING Capital Advisors LLC, as Investment
Manager
By: /s/ Xxxx X. X'Xxxxxx
---------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
S-39
ING-ORYX CLO, LTD.,
by: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Xxxx X. X'Xxxxxx
---------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
S-43
ING PRIME RATE TRUST,
by: ING Pilgrim Investments, LLC as its
investment Manager (Taxpayer
ID # 95-687-4587).
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
S-44
ING SENIOR INCOME FUND,
by: ING Pilgrim Investments, LLC as its
investment Manager (Taxpayer
ID # 95-687-4587).
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-45
Sankaty Advisors, LLC as Collateral
Manager for Race Point CLO, Limited,
as Term Lender
By: /s/ Xxxxx X. Xxxxx
` ----------------------
Name: Xxxxx X. Xxxxx
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
S-47
RIVIERA FUNDING LLC,
By: /s/ Xxx X. Xxxxxx
----------------------
Name: XXX X. XXXXXX
Title: ASST. VICE PRESIDENT
S-48
Sankaty High Yield Partners III. L.P
By: /s/ Xxxxx X. Xxxxx
--------------------
Name: XXXXX X. XXXXX
Title: MANAGING DIRECTOR
PORTFOLIO MANAGER
S-51
SENECA CBO IV, LIMITED,
By: /s/ Xxxxxxx Xxxxx
--------------------
Name: Xxxxxxx Xxxxx
Title: Portfolio Manager
S-53
SEQUILS-ING I (HBDGM), LTD.,
by: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Xxxx X. X'Xxxxxx
-----------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
S-56
SKM-LIBERTYVIEW CBO I LIMITED,
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
S-58
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY,
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Xxxxx Xxx & Famham Incorporated,
as Advisor to the Xxxxx Xxx
Floating Rate Limited Liability
Company
S-60
SWISS LIFE US RAINBOW LIMITED,
by: ING Capital Advisors LLC, as Investment
Manager
By: /s/ Xxxx X. X'Xxxxxx
----------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
S-61
THE ING CAPITAL SENIOR SECURED
HIGH INCOME HOLDINGS FUND, LTD.,
by: ING Capital Advisors LLC, as Investment
Manager
By: /s/ Xxxx X. X'Xxxxxx
-----------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
S-63
THE PROVIDENT BANK,
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
----------------------------
Name: XXXXXXXXXXX X. XXXXXXX
Title: VICE PRESIDENT
X-00
XXXXXXX XXXXXXXX (XXX XXXX), INC.,
By: /s/ Xxxxx X. Xxxxxx
---------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-65
TRANSAMERICA BUSINESS CAPITAL
CORPORATION,
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
S-66
XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: XXXXXX X. XXXXXX
Title: EXECUTIVE DIRECTOR
S-2
XXX XXXXXX PRIME RATE INCOME
TRUST,
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: XXXXXX X. XXXXXX
Title: EXECUTIVE DIRECTOR
S-3
XXX XXXXXX SR FLOATING RATE FUND,
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: XXXXXX X. XXXXXX
Title: EXECUTIVE DIRECTOR
S-4
WINGED FOOT FUNDING TRUST,
By: /s/ Xxx X. Xxxxxx
-------------------
Name: XXX X. XXXXXX
Title: AUTHORIZED AGENT
S-70
