EXHIBIT 4.4
SECOND AMENDMENT
----------------
SECOND AMENDMENT (this "Amendment"), dated as of March 26,
1999, among HOSIERY CORPORATION OF AMERICA, INC., a Delaware corporation (the
"Borrower"), the lending institutions party to the Credit Agreement referred to
below (the "Banks") and BANKERS TRUST COMPANY, as Agent (in such capacity, the
"Agent"). Unless otherwise indicated, all capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in the
Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent are parties to
a Credit Agreement, dated as of October 17, 1994 and amended and restated as of
November 20, 1997 (as amended, amended and restated, modified and/or
supplemented through but not including the Second Amendment Effective Date
referred to below, the "Credit Agreement"); and
WHEREAS, subject to and on the terms and conditions set forth
herein, the parties hereto wish to amend the Credit Agreement, as provided
below;
NOW, THEREFORE, it is agreed:
I. Amendments and Waivers to Credit Agreement.
1. Section 1.01 of the Credit Agreement is hereby amended by
(i) inserting the text ", the Incremental Revolving Facility" immediately after
the text "Term Facility" appearing in said Section and (ii) inserting the
following new clause (e) at the end of said Section:
"(e) Loans under the Incremental Revolving Facility (each, an
"Incremental Revolving Loan" and, collectively, the "Incremental
Revolving Loans") (i) shall be made at any time and from time to time
on and after the Second Amendment Effective Date and prior to the IRF
Maturity Date, provided that Incremental Revolving Loans may be made
only when the sum of (A) the aggregate outstanding principal amount of
Revolving Loans, plus (B) the Letter of Credit Outstanding (exclusive
of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans), plus (C) the outstanding principal amount of
Swingline Loans (exclusive of Swingline Loans which are paid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans), equals $20,000,000, (ii) except as
hereinafter provided, may, at the option of the Borrower, be incurred
and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that all Incremental Revolving Loans made as part of
the same Borrowing shall, unless otherwise specifically provided
herein, consist of Incremental Revolving Loans of the same Type, (iii)
may be repaid and reborrowed in accordance with the provisions hereof
and (iv) shall not exceed for any Bank, after giving effect to any
incurrence thereof, that aggregate principal amount which, when
combined with the aggregate outstanding principal amount of all other
Incremental Revolving Loans of such Bank, equals the Incremental
Revolving Commitment of such Bank at such time.".
2. Section 1.05 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (ii) of Section
1.05(a) and inserting a comma in lieu thereof and (ii) inserting the text "and
(iv) if Incremental Revolving Loans, by a promissory note substantially in the
form of Exhibit B-4 with blanks appropriately completed in conformity herewith
(each, an "Incremental Revolving Note" and, collectively, the "Incremental
Revolving Notes")" at the end of clause (a) of said Section.
3. Section 1.07 of the Credit Agreement is hereby amended by
inserting the text ", Incremental Revolving Commitments" immediately after the
text "Term Commitments" appearing in said Section.
4. Section 1.09 of the Credit Agreement is hereby amended by
deleting clause (iv) of said Section in its entirety and inserting the following
new clause (iv) in lieu thereof:
"(iv) no Interest Period with respect to a Borrowing of Term
Loans or Revolving Loans may be elected that would extend beyond the
Final Maturity Date and no Interest Period with respect to a Borrowing
of Incremental Revolving Loans may be elected that would extend beyond
the IRF Maturity Date;".
5. Section 3.01 of the Credit Agreement is hereby amended by
inserting the following new clause (g) at the end of said Section:
"(g) The Borrower agrees to pay to the Agent a commitment fee
(the "IRF Commitment Fee") for the account of each Non-Defaulting Bank
with an Incremental Revolving Commitment for the period from and
including the Second Amendment Effective Date to, but not including,
the date upon which the Incremental Revolving Commitment has been
terminated, computed for each day at a per annum rate equal to 1/2 of
1% multiplied by the then unutilized Incremental Revolving Commitment
of such Bank. Such IRF Commitment Fees shall be due and payable in
arrears on the last Business Day of each March, June, September and
December and on the date upon which the Incremental Revolving
Commitment is terminated.".
6. Notwithstanding anything to the contrary contained in
Section 3.02 of the Credit Agreement, (i) the Borrower may not voluntarily
terminate or partially reduce the Total Revolving Commitment at any time prior
to the IRF Termination Date and (ii) the Borrower shall have the right to
terminate or partially reduce the unutilized Total Incremental Revolving
Commitment, without premium or penalty, provided that (x) any such termination
or reduction shall be applied to proportionally and permanently reduce the
Incremental Revolving Commitment of each Bank with such a Commitment and (y) any
such termination or reduction shall be in an amount equal to at least
$1,000,000.
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7. Section 3.03 of the Credit Agreement is hereby amended by
deleting clauses (c) and (d) of said Section in their entirety and inserting in
lieu thereof the following new clauses (c), (d), (e) and (f):
"(c) The Total Incremental Revolving Commitment shall
terminate in its entirety on the earlier of (i) the IRF Maturity Date
and (ii) the date on which any Change of Control occurs.
(d) On each date on which a mandatory repayment of Term Loans
pursuant to Section 4.02(A)(c), (d), (e), (f) or (g) would be required
in the absence of Section 4.02(A)(j), the Total Incremental Revolving
Commitment shall be permanently reduced by the amount otherwise
required to be applied to repay Term Loans pursuant to said Section.
(e) On each date on and after the IRF Termination Date upon
which a mandatory repayment of Term Loans pursuant to Section
4.02(A)(c), (d), (e), (f) or (g) is required (and exceeds in amount the
aggregate principal amount of Term Loans then outstanding) or would be
required if Term Loans were then outstanding, the Total Revolving
Commitment shall be permanently reduced by the amount, if any, by which
the amount required to be applied pursuant to said Section (determined
as if an unlimited amount of Term Loans were actually outstanding)
exceeds the aggregate principal amount of Term Loans then outstanding.
(f) Each partial reduction of the Total Revolving Commitment
or the Total Incremental Revolving Commitment pursuant to this Section
3.03 shall apply proportionately to the Revolving Commitment or
Incremental Revolving Commitment, as the case may be, of each Bank with
such a Commitment.".
8. Notwithstanding anything to the contrary contained in
Section 4.01 of the Credit Agreement, the Borrower shall not be permitted to
prepay voluntarily any Term Loans or Revolving Loans pursuant to said Section at
any time prior to the IRF Termination Date, provided that at any time a new
Letter of Credit is being issued under the Credit Agreement, the Borrower may
repay Revolving Loans with the proceeds of Incremental Revolving Loans to the
extent necessary so that after giving effect to such issuance and repayment the
sum of the aggregate outstanding principal amount of Revolving Loans and of
Swingline Loans plus Letter of Credit Outstandings at such time does not exceed
the Total Revolving Commitment at such time.
9. Section 4.02(A)(a) of the Credit Agreement is hereby
amended by inserting the following new clause (iii) at the end of said Section:
"(iii) If on any date the sum of the aggregate outstanding
principal amount of Incremental Revolving Loans exceeds the Total
Incremental Revolving Commitment as then in effect, the Borrower shall
repay on such date the principal of Incremental Revolving Loans in an
aggregate amount equal to such excess.".
10. Section 4.02(A) of the Credit Agreement is hereby amended
by inserting the following new clause (j) at the end of said Section:
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(j) "Notwithstanding anything to the contrary contained in
Sections 4.02(A)(c), (d), (e), (f) and (g), no mandatory repayment of
Term Loans otherwise required to be made pursuant to said Sections
shall be required to be made prior to the IRF Maturity Date.".
11. Section 6.05(b) of the Credit Agreement is hereby
amended by deleting said Section in its entirety and inserting the following
new Section 6.05(b) in lieu thereof:
"(b) The proceeds of all Revolving Loans and Incremental
Revolving Loans may be used for the general corporate and working
capital purposes of the Borrower and its Subsidiaries.".
12. Section 8.11 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting in
lieu thereof the following new table:
"Fiscal Quarter Ratio
-------------- -----
Fiscal quarter ended in December, 1998 1.05 to 1
Fiscal quarter ended in March, 1999 1.00 to 1
Fiscal quarter ended in June, 1999 1.00 to 1
Fiscal quarter ended in September, 1999 1.00 to 1
Each fiscal quarter ended thereafter 1.15 to 1".
13. Section 8.12 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting in
lieu thereof the following new table:
"Fiscal Quarter Amount
--------------- ------
Fiscal quarter ended in December, 1998 $25,000,000
Fiscal quarter ended in March, 1999 $20,000,000
Fiscal quarter ended in June, 1999 $20,000,000
Fiscal quarter ended in September, 1999 $20,000,000
Fiscal quarter ended in December, 1999 $35,000,000
Fiscal quarter ended in March, 2000 $42,500,000
Fiscal quarter ended in June, 2000 $43,500,000
Fiscal quarter ended in September, 2000 $45,500,000
Fiscal quarter ended in December, 2000 $49,500,000
Fiscal quarter ended in December, 2001 $50,000,000
Fiscal quarter ended thereafter $50,000,000".
14. Section 8.13 of the Credit Agreement is hereby amended by
deleting the table appearing in said Section in its entirety and inserting in
lieu thereof the following new table:
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"Fiscal Quarter Ratio
-------------- -----
Fiscal quarter ended in December, 1998 2.85 to 1
Fiscal quarter ended in March, 1999 3.60 to 1
Fiscal quarter ended in June, 1999 3.00 to 1
Fiscal quarter ended in September, 1999 3.00 to 1
Fiscal quarter ended in December, 1999 2.25 to 1
Each fiscal quarter ended thereafter 2.00 to 1".
15. Section 10 of the Credit Agreement is modified by deleting
the definitions of "Commitment", "Facility", "Minimum Borrowing Amount" and
"Total Commitment" in their entirety and inserting the following new definitions
in appropriate alphabetical order:
"Adjusted Total Incremental Revolving Commitment" shall mean
at any time the Total Incremental Revolving Commitment less the aggregate
Incremental Revolving Commitments of all Defaulting Banks.
"Commitment" shall mean, with respect to each Bank, such
Bank's Term Commitment, Revolving Commitment and Incremental Revolving
Commitment.
"Facility" shall mean any of the credit facilities established
under this Agreement, i.e., the Term Facility, the Revolving Facility or the
Incremental Revolving Facility.
"Incremental Required Banks" shall mean Non-Defaulting Banks
whose Incremental Revolving Commitments (or, if after the Total Incremental
Revolving Commitment has been terminated, outstanding Incremental Revolving
Loans) constitute greater than 50% of the Adjusted Total Incremental Revolving
Commitment (or, if after the Total Incremental Revolving Commitment has been
terminated, the aggregate outstanding Incremental Revolving Loans of
Non-Defaulting Banks).
"Incremental Revolving Commitment" shall mean, with respect to
each Bank, the amount set forth opposite such Bank's name in Annex I hereto
directly below the column entitled "Incremental Revolving Commitment," as the
same may be reduced or terminated from time to time pursuant to Section 3.02,
3.03 and/or 9 or adjusted from time to time as a result of assignments to or
from such Bank pursuant to Section 1.13 and/or 12.04.
"Incremental Revolving Facility" shall mean the Facility
evidenced by the Incremental Revolving Commitment.
"Incremental Revolving Loan" shall have the meaning provided
in Section 1.01(e).
"Incremental Revolving Note" shall have the meaning provided
in Section 1.05(a).
"IRF Commitment Fee" shall have the meaning provided in
Section 3.01(g).
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"IRF Maturity Date" shall mean the earlier to occur of (i)
December 31, 1999 and (ii) the IRF Termination Date.
"IRF Termination Date" shall mean that date upon which the
Incremental Revolving Commitment has been terminated and all principal, accrued
interest and other amounts owing in respect of Incremental Revolving Loans have
been repaid in full.
"Minimum Borrowing Amount" shall mean (i) for Term Loans,
Revolving Loans and Incremental Revolving Loans maintained as Base Rate Loans,
$1,000,000, (ii) for Term Loans and Revolving Loans maintained as Eurodollar
Loans, $5,000,000, (iii) for Incremental Revolving Loans maintained as
Eurodollar Loans, $1,000,000 and (iv) for Swingline Loans, $100,000.
"Second Amendment" shall mean the Second Amendment to this
Agreement, dated as of March 26, 1999.
"Second Amendment Effective Date" shall have the meaning
provided in the Second Amendment.
"Total Commitment" shall mean the sum of the Total Term
Commitment, the Total Revolving Commitment and the Total Incremental Revolving
Commitment.
"Total Incremental Revolving Commitment" shall mean the sum
of the Incremental Revolving Commitments of each of the Banks.
16. Incremental Revolving Commitments (and related outstanding
obligations) shall be assignable on the same basis as Revolving Commitments (and
outstanding Revolving Loans) under Section 12.04(b) of the Credit Agreement as
if each reference to "Revolving Commitment" therein were instead a reference to
"Revolving Commitment or Incremental Revolving Commitment", provided that
assignments of Incremental Revolving Commitments may only be made to a Person
which is a Bank on the Second Amendment Effective Date.
17. Section 12 of the Credit Agreement is hereby amended
by adding the following new Section 12.17:
"12.17 Agreement for Benefit of Banks Making Incremental
Revolving Loans. To induce the Banks with Incremental Revolving
Commitments to make the Incremental Revolving Loans on the Second
Amendment Effective Date, and for the benefit of such Banks and their
successors and assigns, each Bank which executes the Second Amendment
agrees for itself, and its successors and assigns, that such Bank
(including for this purpose its successors and assigns) will not in the
future agree to any amendment, modification or waiver to this Agreement
which amends, modifies or waives the provisions of Section 1.01(e),
3.03, 4.02(A)(a)(iii), 4.02(A)(j) or the definitions of "Incremental
Required Banks", "IRF Maturity Date" or "IRF Termination Date" in any
manner adverse to the interests of any Bank holding Incremental
Revolving Loans without the consent of the Incremental Required Banks
at such time.".
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18. Notwithstanding anything to the contrary contained in the
Credit Agreement, no change, waiver, discharge or termination shall extend the
IRF Maturity Date without the consent of each Bank with an Incremental Revolving
Commitment.
19. Annex I to the Credit Agreement is hereby amended by
deleting same in its entirety and inserting in lieu thereof the new Annex I as
it appears as attached hereto.
20. The Credit Agreement is hereby further amended by
inserting a new Exhibit B-4 thereto in the form of Exhibit B-4 attached hereto.
II. Miscellaneous.
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1. In order to induce the Banks to enter into this Amendment,
the Borrower hereby (i) makes each of the representations, warranties and
agreements contained in Section 6 of the Credit Agreement and (ii) represents
and warrants that there exists no Default or Event of Default, in each case on
the Second Amendment Effective Date, both before and after giving effect to this
Amendment.
2. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the
"Second Amendment Effective Date") when each of the Borrower, the Required Banks
and each Bank providing an Incremental Revolving Commitment shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to White & Case
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxx Xxxxxxxxx
(facsimile number 212-354-8113).
6. So long as the Second Amendment Effective Date occurs, the
Borrower shall pay (i) to each Bank which has executed a counterpart hereof on
or prior to 5:00 P.M. (New York time) on the later to occur of March 26, 1999 or
the Second Amendment Effective Date, a consent fee equal to 0.10% of the sum of
(x) its Revolving Commitment as in effect immediately prior to the Second
Amendment Effective Date plus (y) the aggregate outstanding principal amount of
Term Loans immediately prior to the Second Amendment Effective Date and (ii) to
each Bank providing an Incremental Revolving Commitment which has executed a
counterpart hereof on or prior to 5:00 P.M. (New York time) on the later to
occur of March 26, 1999 or the Second Amendment Effective Date, a fee equal to
0.75% of its Incremental Revolving Commitment as in effect on the Second
Amendment Effective Date. All fees payable pursuant to the immediately preceding
sentence shall be paid to the Agent within one Business Day after the later date
specified in the immediately preceding sentence, which fees shall be distributed
by the Agent to the relevant Banks in the amounts specified in the immediately
preceding sentence.
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7. From and after the Second Amendment Effective Date, all
references to the Credit Agreement in the Credit Agreement and the other Credit
Documents shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
8
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
HOSIERY CORPORATION OF
AMERICA, INC.
By:___________________
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By:___________________
Name: Xxxx Xxx Xxxxx
Title:
BANK POLSKA KASA OPIEKI, S.A.
By:____________________
Name:
Title:
EUROPEAN AMERICAN BANK
By:___________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:____________________
Name:
Title:
9
NATIONAL WESTMINSTER BANK PLC
NEW YORK and/or NASSAU BRANCH
By:____________________
Name:
Title:
NATIONSBANK, N.A.
By:____________________
Name:
Title:
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ANNEX I
COMMITMENTS
Incremental
Term Revolving Revolving
Bank Commitment Commitment Commitment
---- -------------- --------------- -------------
Bankers Trust $30,588,235.00 $5,148,841.46 $2,235,474.00
Company
Bank Polska Kasa Opieki, S.A. $1,204,819.28
European American Bank $3,058,103.98 $764,526.00
First Union National Bank $11,470,588.00 $3,529,411.76 $1,000,000.00
National Westminster Bank Plc $11,470,588.00 $3,529,411.76
NationsBank, N.A. $11,470,588.00 $3,529,411.76 $1,000,000.00
Total: $65,000,000.00 $20,000,000.00 $5,000,000.00
============== ============== =============
EXHIBIT B-4
FORM OF INCREMENTAL REVOLVING NOTE
$_________ New York, New York
---------- --, ----
FOR VALUE RECEIVED, HOSIERY CORPORATION OF AMERICA, INC., a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
_______________________ (the "Bank"), in lawful money of the United States of
America in immediately available funds, at the Payment Office (as defined in the
Agreement referred to below) initially located at One Bankers Trust Plaza, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the IRF Maturity Date (as defined
in the Agreement) the principal sum of _________________ DOLLARS ($_________)
or, if less, the then unpaid principal amount of all Incremental Revolving Loans
(as defined in the Agreement) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid
principal amount hereof in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Incremental Revolving Notes referred
to in the Credit Agreement, dated as of October 17, 1994 and amended and
restated as of November 20, 1997, among the Borrower, the lending institutions
from time to time party thereto (including the Bank), and Bankers Trust Company,
as Agent (as amended, modified or supplemented from time to time, the
"Agreement"), and is entitled to the benefits thereof and of the other Credit
Documents (as defined in the Agreement). This Note is secured pursuant to the
Security Documents (as defined in the Agreement). As provided in the Agreement,
this Note is subject to voluntary prepayment and mandatory repayment prior to
the IRF Maturity Date, in whole or in part.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice (other than notices expressly provided for in the Agreement) of any kind
in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
HOSIERY CORPORATION OF
AMERICA, INC.
By:____________________
Name:
Title:
