FIRST AMENDMENT, dated as of October 25, 2007 (this “Amendment”), to the CREDIT AGREEMENT dated as of December 21, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among THE DRESS BARN, INC., a...
Exhibit
99.1
| FIRST AMENDMENT, dated as of October 25, 2007 (this “Amendment”), to the CREDIT AGREEMENT dated as of December 21, 2005 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among THE DRESS BARN, INC., a Connecticut corporation, the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., a national banking association, as administrative agent and collateral agent for such lenders |
WHEREAS,
the Lenders have agreed to extend credit to the Borrower under the Credit
Agreement on the terms and subject to the conditions set forth therein;
and
WHEREAS,
the Borrower has requested that the Lenders amend certain provisions of the
Credit Agreement and the Lenders whose signatures appear below, constituting
at
least the Required Lenders, are willing to amend the Credit Agreement on the
terms and subject to the conditions set forth herein;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained and other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined
Terms.
Capitalized terms used but not otherwise defined herein (including in the
recital hereto) have the meanings assigned to them in the Credit
Agreement.
SECTION
2. Amendment
of “Permitted Investments” Definition:
Paragraph (f) of the “Permitted Investments” definition in Section 1.01 of the
Credit Agreement is hereby amended in its entirety to read as follows (such
amendment to be given effect as of December 21, 2005, as if the Credit Agreement
as originally executed had contained the amended definition):
“(f)
investments in unconsolidated entities that do not constitute subsidiaries
of
the Borrower; provided
that the
sum of all such investments shall not exceed $10,000,000 in the
aggregate.”
SECTION
3. Amendment
of Section 6.08(a) of the Credit Agreement.
Section
6.08(a) of the Credit Agreement is hereby amended in its entirety to read as
follows:
“The
Borrower will not, and will not permit any Subsidiary to, declare or make,
or
agree to pay or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except (i) the Borrower
may
declare and pay dividends with respect to its capital stock payable solely
in
additional shares of its common stock, (ii) Subsidiaries may declare and
pay dividends ratably with respect to their capital stock, (iii) the
Borrower may make Restricted Payments, not exceeding $1,000,000 during any
fiscal year, pursuant to and in accordance with stock option plans or other
benefit plans for management or employees of the Borrower and its Subsidiaries
and (iv) the Borrower may repurchase shares of its common stock (either in
the
open market or through private transactions) pursuant to the Borrower’s stock
buyback program, in an aggregate amount not to exceed $125,000,000 in any fiscal
year; provided that at the time of and immediately after giving effect to any
such Restricted Payment, (x) the Borrower shall be in Pro Forma Compliance
and
(y) no Default or Event of Default shall have occurred and be
continuing.
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SECTION
4. Representations,
Warranties and Agreements.
The
Borrower, hereby represents and warrants to and agrees with each Lender and
the
Administrative Agent that:
(a)
The
representations and warranties set forth in Article III of the Credit Agreement,
as amended hereby, are true and correct in all material respects on and as
of
the Amendment Effective Date (as defined below) and after giving effect to
this
Amendment, with the same effect as if made on and as of such date, except to
the
extent such representations and warranties expressly relate to an earlier date,
in which case they were true and correct as of such earlier date.
(b)
As of
the Amendment Effective Date, after giving effect to this Amendment, no Default
or Event of Default will have occurred and be continuing.
SECTION
5. Effectiveness.
This
Amendment shall become effective as of the date (the “Amendment
Effective Date”)
on
which the Administrative Agent shall have received duly executed counterparts
hereof that, when taken together, bear the authorized signatures of the Borrower
and Lenders constituting at least the Required Lenders.
SECTION
6. Credit
Agreement.
Except
as specifically stated herein, the Credit Agreement shall continue in full
force
and effect in accordance with the provisions thereof. As used therein, the
terms
“Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and words of similar
import shall, unless the context otherwise requires, refer to the Credit
Agreement as modified hereby.
SECTION
7. Applicable
Law.
THIS
AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE
STATE OF NEW YORK.
SECTION
8. Counterparts.
This
Amendment may be executed in counterparts (and by different parties hereto
on
different counterparts), each of which shall constitute an original but all
of
which, when taken together, shall constitute a single instrument. Delivery
of an
executed counterpart of a signature page of this Amendment by telecopy shall
be
effective as delivery of a manually executed counterpart hereof.
SECTION
9. Expenses.
The
Borrower agrees to reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP,
counsel for the Administrative Agent.
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IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
duly
executed by their respective authorized officers as of the date first above
written.
|
DRESS
BARN, INC., A CONNECTICUT CORPORATION,
|
||
| |
|
|
| by: | /s/ Xxxxxx Xxxxxxx | |
|
Name: Xxxxxx Xxxxxxx |
||
|
Title:
Senior Vice President and Chief Financial
Officer
|
||
|
JPMORGAN
CHASE BANK, N.A., INDIVIDUALLY AND AS ADMINISTRATIVE
AGENT,
|
||
| |
|
|
| by: | /s/ Xxxxx X. Xxxxxx | |
|
Name: Xxxxx X. Xxxxxx |
||
|
Title:
Vice President
|
||
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Exhibit
99.1
To
approve the First Amendment to the Dress Barn, Inc. Credit
Agreement:
| Name of Institution: | |
| National City Bank | |
| by: | Xxxxx Xxxxxx |
| Name: Xxxxx Xxxxxx | |
| Title: Portfolio Manager | |
4
of
11
To
approve the First Amendment to the Dress Barn, Inc. Credit
Agreement:
| Name of Institution: | |
| U.S. Bank N. A. | |
| by: | Xxxxxxx X. Xxxxxxx |
| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Vice President | |
5
of
11
To approve the First Amendment to the Dress Barn, Inc.
Credit
Agreement:
| Name of Institution: | ||
| The CIT Group/Business Credit, Inc. | ||
| by: | Xxxxxxx XxXxxxxx | |
| Name: Xxxxxxx XxXxxxxx | ||
| Title: Vice President | ||
| by: |
|
1 |
| Name: | ||
| Title: | ||
1 For any institution requiring a second signature line.
6
of
11
To
approve the First Amendment to the Dress Barn, Inc. Credit
Agreement:
| Name of Institution: | ||
| Israel Discount Bank of New York | ||
| by: | Xxxxxx X. Xxxxx III | |
| Name: Xxxxxx X. Xxxxx III | ||
| Title: First Vice President | ||
| by: |
Xxxxxxx
Xxxxxxxx
|
1 |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Assistant Vice President | ||
1 For
any
institution requiring a second signature line.
7
of
11
To
approve the First Amendment to the Dress Barn, Inc. Credit
Agreement:
| Name of Institution: | ||
| Xxxxx Fargo Retail Finance | ||
| by: | Xxxxxxxx Baldinelle | |
| Name: Xxxxxxxx Baldinelle | ||
| Title: AVP | ||
| by: |
|
1 |
| Name: | ||
| Title: | ||
1 For
any
institution requiring a second signature line.
8
of
11
To
approve the First Amendment to the Dress Barn, Inc. Credit
Agreement:
| Name of Institution: | ||
| Bank of America, NA | ||
| by: | Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
| by: |
|
1 |
| Name: | ||
| Title: | ||
1 For
any
institution requiring a second signature line.
9
of
11
To
approve the First Amendment to the Dress Barn, Inc. Credit
Agreement:
| Name of Institution: | ||
| North Fork Business Capital Corp. | ||
| by: | Xxx Xxxxxx | |
| Name: Xxx Xxxxxx | ||
| Title: Vice President | ||
| by: |
Not
Applicable
|
1 |
| Name: | ||
| Title: | ||
1 For
any
institution requiring a second signature line.
10
of
11
To
approve the First Amendment to the Dress Barn, Inc. Credit
Agreement:
| Name of Institution: | ||
| CITIBANK, N.A. | ||
| by: | Xxxxxxx X. XxXxxx, Xx. | |
| Name: Xxxxxxx X. XxXxxx, Xx. | ||
| Title: Senior Vice President | ||
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