EXHIBIT 4.3
AMENDMENT NO. 4 TO FINANCING AGREEMENTS
AMENDMENT No. 4, dated September 23, 2002, by and among Congress
Financial Corporation, a Delaware corporation, in its capacity as Administrative
Agent, Collateral Agent, Joint Lead Arranger and Joint Bookrunner (in such
capacity, "Agent") for the financial institutions from time to time party to the
Loan Agreement (as hereinafter defined) as lenders (each individually, a
"Lender" and collectively, "Lenders"), Charming Shoppes, Inc., a Pennsylvania
corporation ("Parent"), Charming Shoppes of Delaware, Inc., a Pennsylvania
corporation ("CS Delaware"), CSI Industries, Inc., a Delaware corporation
("CSI"), FB Apparel, Inc., an Indiana corporation ("FB Apparel"), Catherines
Stores Corporation, a Tennessee corporation ("Catherines") and Lane Xxxxxx,
Inc., a Delaware corporation ("LB", and, together with Parent, CS Delaware, CSI,
FB Apparel and Catherines hereinafter referred to each individually, as a
"Borrower" and collectively, as "Borrowers"), and CS Delaware, in its capacity
as agent for itself as a Borrower and for the other Borrowers ("Borrowers'
Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Agent, X.X. Xxxxxx Business Credit Corp, a Delaware
corporation, in its capacity as Co-Agent, Joint Lead Arranger and Joint
Bookrunner under the Loan Agreement (in such capacity, "Co-Agent"), Lenders,
Borrowers and Borrowers' Agent have entered into financing arrangements pursuant
to which Lenders have made and may make loans and advances and provide other
financial accommodations to Borrowers as set forth in the Loan and Security
Agreement, dated August 16, 2001, by and among Lenders, Agent, Co-Agent,
Borrowers and Borrowers' Agent (as the same was amended by Amendment No. 1,
dated as of January 12, 2002, Amendment No. 2, dated as of May 17, 2002,
Amendment No. 3, dated as of July 29, 2002 (effective as of August 16, 2001) and
may hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement", and together with all agreements,
documents and instruments at any time executed and/or delivered in connection
therewith or related thereto, as from time to time amended, modified,
supplemented, extended, renewed, restated or replaced, collectively, the
"Financing Agreements");
WHEREAS, Borrowers and Borrowers' Agent have requested that Agent agree
to make certain amendments to the Financing Agreements and Agent is willing to
agree to such amendments, subject to the terms and conditions contained herein;
and
WHEREAS, by this Amendment Xx. 0, Xxxxx, Xxxxxxxxx and Borrowers' Agent
desire and intend to evidence such amendments.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements and covenants contained herein, and subject to the satisfaction of
the conditions set forth in Section 6 hereof, the parties hereto agree as
follows:
1. Definitions.
(a) Additional Definitions. As used herein, the following terms shall
have the respective meanings given to them below and the Loan Agreement shall be
deemed and is hereby amended to include, in addition and not in limitation of,
each of the following definitions:
(i) "Amendment No. 4" shall mean this Amendment No. 4 to
Financing Agreements by and among Agent, Borrowers' Agent and Borrowers, as the
same now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated, or replaced, and the Loan Agreement shall be deemed and is
hereby amended to include, in addition and not in limitation, such definition.
(ii) "Greencastle Subsidiary" shall mean a special purpose
single asset entity formed directly or indirectly as a Subsidiary of Parent for
the sole purpose of financing the Indiana Real Property, which entity is engaged
in no business or operations other than the ownership of the Indiana Real
Property and the financing, operation and lease thereof to any Borrower or
Obligor.
(iii) "White Xxxxx Real Property" shall mean the real property
located at 00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxx and the
improvements located thereon.
(iv) "White Xxxxx Subsidiary" shall mean a special purpose
single asset entity formed directly or indirectly as a Subsidiary of Parent for
the sole purpose of financing the White Xxxxx Real Property, which entity is
engaged in no business or operations other than the ownership of the White Xxxxx
Real Property and the financing, operation and lease thereof to any Borrower or
Obligor.
(b) Amendment to Definitions.
(i) Section 1.61 of the Loan Agreement is hereby amended by
deleting such section in its entirety and substituting the following therefor:
"1.61 "Excluded Subsidiaries" shall mean each of the Financing
Subsidiaries, the Inactive Subsidiaries, M and A Joint Venture LLC,
Charming J.V. Inc., CSI Charities, Inc., the Foreign Subsidiaries,
White Xxxxx Subsidiary, Greencastle Subsidiary, Winks Lane, Inc., and
FB Distro, Inc. (in the event a new lender requires that FB Distro,
Inc. be released from its Obligations as provided in Section 9.8(l)
hereof)."
(ii) All references to the term "Financing Agreements" in the
Loan Agreement shall be deemed and each such reference is hereby amended to
include, in addition and not in limitation, this Amendment No. 4 and all other
agreements, documents and instruments at any time executed and/or delivered by
any Borrower, Borrowers' Agent or any other person in connection herewith, as
the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
(c) Interpretation. All capitalized terms used herein shall have the
meanings assigned thereto in the other Financing Agreements, unless otherwise
defined herein. All references to the
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plural herein shall also mean the singular and all references to the singular
herein shall also mean the plural, in each case unless otherwise required by the
context of the use thereof.
2. Consents.
(a) Formation of Subsidiaries. Subject to the terms and conditions
hereof and notwithstanding anything to the contrary contained in Section 9.10 of
the Loan Agreement, Agent hereby consents to (i) the formation by Parent of
Greencastle Subsidiary and White Xxxxx Subsidiary as wholly-owned Subsidiaries
of Parent, and (ii) equity investments by any Borrower or Obligor in Greencastle
Subsidiary and White Xxxxx Subsidiary, provided, that, the aggregate amount of
all such investments (exclusive of the transfers or acquisitions of the White
Xxxxx Real Property and the Indiana Real Property, as the case may be) in
Greencastle Subsidiary shall not exceed $5,000,000, and the aggregate amount of
all such investments in White Xxxxx Subsidiary shall not exceed $5,000,000.
(b) White Xxxxx Real Property. Notwithstanding anything to the contrary
contained in Sections 9.7(b) and 9.8 of the Loan Agreement, Agent hereby
consents to the acquisition by any Borrower, Obligor or White Xxxxx Subsidiary
of the White Xxxxx Real Property pursuant to the terms and conditions of the
Agreement of Sale, dated June 19, 2002, as amended through the date hereof, by
and between Time Warner Entertainment Company, L.P., and Parent or its assignee
or nominee (the "White Xxxxx Purchase Agreement") by no later than October 15,
2002, the transfer of the White Xxxxx Real Property (if the purchaser thereof is
not White Xxxxx Subsidiary) to White Xxxxx Subsidiary, provided, that, in the
event that such property is not transferred to White Xxxxx Subsidiary and Excess
Availability is at any time after the date hereof less than $50,000,000, then at
Agent's option, Agent may request that the owner of such property grant a
mortgage (in form and substance similar to the Mortgages, together with such
other documents and instruments as Agent may require in connection therewith)
covering such real property in favor of Agent, for the benefit of the Lenders,
and the leasing of the White Xxxxx Real Property by White Xxxxx Subsidiary to
any Borrower or Obligor once the White Xxxxx Real Property is transferred to or
acquired by White Xxxxx Subsidiary; provided, that, each of the following
conditions shall have been satisfied: (A) Lender shall have received true and
complete copies of the purchase agreements and lease agreements with respect to
the White Xxxxx Property, together with all exhibits and schedules thereto, in
each case, duly authorized, executed and delivered by the parties thereto, which
shall be in form and substance reasonably satisfactory to Agent, and (B) Agent
shall have received a Collateral Access Agreement, duly executed by the lessor
and owner and Lender of the White Xxxxx Real Property, in form and substance
satisfactory to Agent, and (C) as of the date of any such purchase pursuant to
the White Xxxxx Purchase Agreement or transfer of the White Xxxxx Real Property
to White Xxxxx Subsidiary, and immediately after giving effect thereto, no Event
of Default or act, condition or event which with notice, lapse of time or both
would constitute an Event of Default shall exist or have occurred.
(c) Indiana Real Property. Notwithstanding anything to the contrary
contained in the Loan Agreement, Agent hereby consents to (i) the transfer of
the Indiana Real Property from FB Distro to Greencastle Subsidiary, provided,
that, such transfer occurs before January 31, 2003, and (ii) the leasing of the
Indiana Real Property by Greencastle Subsidiary to any Borrower or Obligor;
provided, that, each of the following conditions shall have been satisfied:
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(A) Lender shall have received true and complete copies of the purchase
agreements and lease agreements with respect to the Indiana Real Property,
together with all exhibits and schedules thereto, in each case, duly authorized,
executed and delivered by the parties thereto, which shall be in form and
substance reasonably satisfactory to Agent, (B) Agent shall have received, in
immediately available funds, the amount of funds necessary, if any, (Borrowers
hereby authorize Agent to apply any "credit balance" which exists on the date of
such transaction to reduce the Indiana Real Property Availability to zero, prior
to requiring the receipt of funds from any Borrower) to reduce the outstanding
amount of Revolving Loans as a result of Indiana Real Property Availability to
zero ; (C) Agent shall have received a Collateral Access Agreement, duly
executed by the owner/lessor and lender in respect of the Indiana Real Property,
in form and substance satisfactory to Agent, and (D) as of the date of any such
purchase or transfer of the Indiana Real Property and after giving effect
thereto, no Event of Default or act, condition or event which with notice, lapse
of time or both would constitute an Event of Default shall exist or have
occurred; to the extent that each of the foregoing conditions has been satisfied
in the determination of Agent, Agent shall, at the request of Borrowers, at
Borrowers' expense, execute and deliver a release of the applicable Mortgage or
Mortgages and such other related release of Lien as requested by Greencastle
Subsidiary or the new lender; provided, that, such releases shall each be in
form and substance satisfactory to Agent.
3. Amendments to Loan Agreement.
(a) Excluded Collateral. Section 5.2 (b) is hereby deleted and the
following substituted therefor:
"(b) assets of the Excluded Subsidiaries, except for the
property of Winks Lane, Inc. located at Xxxxxxxxxxx Square in
Philadelphia, Pennsylvania, and subject to a Mortgage."
(b) Encumbrances. (i) The parenthetical in the second line of the
lead-in paragraph of Section 9.8 of the Loan Agreement is hereby deleted and the
following is substituted therefor:
"(other than Financing Subsidiaries, White Xxxxx Subsidiary
and Greencastle Subsidiary)"
(ii) The reference to "$40,000,000" in Section 9.8 (e) is
hereby deleted and the following amount is substituted therefor: "$60,000,000".
(c) Indebtedness.
(i) The parenthetical in the second line of the lead-in
paragraph of Section 9.9 of the Loan Agreement is hereby deleted and the
following is substituted therefor:
"(other than Financing Subsidiaries, White Xxxxx Subsidiary
and Greencastle Subsidiary)"
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(ii) Section 9.10 of the Loan Agreement is hereby amended by
adding the following new Sections 9.10(r) and 9.10(s) immediately after Section
9.10 (q) thereof:
"(r) unsecured guarantees by Parent of the obligations of
White Xxxxx Subsidiary and Greencastle Subsidiary, as the case
may be, arising in connection with any financing of the White
Xxxxx Real Property or Indiana Real Property, as the case may
be, provided, that the maximum principal amount of
Indebtedness guaranteed in respect of obligations of (i)
Greencastle Subsidiary shall not exceed $13,800,000, (ii)
White Xxxxx Subsidiary shall not exceed $17,250,000, and
(s) the unsecured guarantee by Parent or CS Delaware of the
obligations of the Maryland Economic Development Corporation
("MEDCO"), in connection with any financing of equipment
purchased by any Borrower and located at the White Xxxxx Real
Property, provided, that, the sum of (i) the principal amount
of Indebtedness to be guaranteed by Parent or CS Delaware
pursuant thereto, and (ii) the aggregate outstanding amount of
Indebtedness permitted to be secured under Section 9.8(e)
hereof, shall not exceed $60,000,000 at any time outstanding;
(d) Refinancing of Indiana Real Property.
(i) Section 9.8(l)(i)(A) is hereby deleted in its entirety and
the following is substituted therefor:
"(A) such Refinancing Mortgage is created and the Indebtedness
secured thereby is incurred no later than January 31, 2003,"
(ii) Section 9.21(a) is hereby deleted in its entirety and the
following is substituted therefor:
"(a) such transaction must occur no later than January 31,
2003,"
4. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrowers and Borrowers' Agent to Agent, Co-Agent and Lenders pursuant
to the Financing Agreements, Borrowers and Obligors hereby jointly and severally
represent, warrant and covenant with and to Agent, and Lenders as follows (which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof and shall be incorporated into and made a part of
the Financing Agreements):
(a) No Event of Default exists on the date of this Amendment
No. 4 (after giving effect to the amendments to the Financing Agreements made by
this Amendment No. 4);
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(b) This Amendment No. 4 has been duly executed and delivered
by Borrowers, Obligors and Borrowers' Agent and this Amendment No. 4 and the
other Financing Agreements are in full force and effect as of the date hereof,
and the agreements and obligations of Borrowers, Obligors and Borrowers' Agent
contained herein and therein constitute legal, valid and binding obligations of
Borrowers and Borrowers' Agent enforceable against Borrowers, Obligors and
Borrowers' Agent in accordance with their respective terms;
(c) All of the representations and warranties set forth in the
Loan Agreement as amended hereby, and the other Financing Agreements, are true
and correct in all material respects, except to the extent any such
representation or warranty is made as of a specified date, in which case such
representation or warranty shall have been true and correct as of such date.
5. Conditions Precedent. The consents and amendments to the Loan
Agreement set forth herein shall be effective only upon the satisfaction of each
of the following conditions in a manner satisfactory to Agent:
(a) receipt by Agent of an original of this Amendment, duly
authorized, executed and delivered by each of the parties hereto;
(b) receipt by Agent of the White Xxxxx Purchase Agreement and
all material documents and agreements relating thereto which shall be in form
and substance reasonably satisfactory to Agent;
(c) receipt by Agent of evidence, in form and substance
satisfactory to Agent, that all required consents or approvals of any persons
other than Agent to the arrangements contemplated herein have been obtained;
(d) all representations and warranties contained herein and in
the Loan Agreement shall be true and correct in all material respects; and
(e) after giving effect to the amendments to the Loan
Agreement provided in this Amendment, no Event of Default shall exist or have
occurred and no event, act or condition shall have occurred or exist which with
notice or passage of time or both would constitute an Event of Default.
6. Effect of this Amendment No. 4 This Amendment No. 4 and the
instruments and agreements delivered pursuant hereto constitute the entire
agreement of the parties with respect to the subject matter hereof and thereof,
and supersede all prior oral or written communications, memoranda, proposals,
negotiations, discussions, term sheets and commitments with respect to the
subject matter hereof and thereof. Except as expressly consented to and amended
pursuant hereto, no other changes or modifications to the Financing Agreements
or waivers of or consents under any provisions thereof are intended or implied,
and in all other respects the Financing Agreements are hereby specifically
ratified, restated and confirmed by all parties hereto as of the effective date
hereof. Without limiting the generality of the foregoing, the execution and
delivery of this Amendment No. 4 shall not be deemed, in any manner, to
constitute a waiver of, or otherwise affect the obligations of Borrowers under
the letter agreement with respect to certain post-closing items, dated August
16, 2001, by Borrowers in favor of Agent, as amended. To the
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extent that any provision of the Loan Agreement or any of the other Financing
Agreements are inconsistent with the provisions of this Amendment No. 4, the
provisions of this Amendment No. 4 shall control.
7. Further Assurances. Borrowers and Borrowers' Agent shall execute and
deliver such additional documents and take such additional action as may be
reasonably requested by Agent to effectuate the provisions and purposes of this
Amendment No. 4.
8. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York (without giving effect to
principles of conflicts of laws that would apply any other law).
9. Binding Effect. This Amendment No. 4 shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns.
10. Counterparts. This Amendment No. 4 may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment No. 4, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto. Delivery of an executed counterpart of this
Amendment No. 4 via telecopier shall have the same force and effect as delivery
of an original executed counterpart of this Amendment No. 4. Any party
delivering an executed counterpart of this Amendment No. 4 via telecopier also
shall deliver an original executed counterpart of this Amendment No. 4, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment No. 4 as to such
party or any other party.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4
to be duly executed and delivered by their authorized officers on the date and
year first above written.
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BORROWERS
CHARMING SHOPPES, INC.
By: ____________________
Xxxx X. Xxxxxxx
Executive Vice President
CHARMING SHOPPES OF DELAWARE, INC.
By: ____________________
Xxxx X. Xxxxxxx
Vice President
CSI INDUSTRIES, INC.
By: _____________________
Xxxx X. Xxxxxxx
Vice President
FB APPAREL, INC.
By: ____________________
Xxxx X. Xxxxxxx
Vice President
LANE XXXXXX, INC.
By: _____________________
Xxxx X. Xxxxxxx
Executive Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
CATHERINES STORES CORPORATION
By: _____________________
Xxxx X. Xxxxxxx
Executive Vice President
BORROWERS' AGENT
CHARMING SHOPPES OF DELAWARE, INC.,
as Borrowers' Agent
By: ___________________________
Xxxx X. Xxxxxxx
Vice President
AGENT
CONGRESS FINANCIAL CORPORATION,
as Administrative Agent
By: _______________________________
Title:______________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
CONSENTED TO:
By Each of the Obligors
on Exhibit A Annexed Hereto
__________________________________
Its:______________________________
By Each of the Obligors
on Exhibit B Annexed Hereto
__________________________________
Its:______________________________
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