EXHIBIT 4.4
AMENDMENT NO. 1 TO FINANCING AGREEMENTS
AMENDMENT, dated as of January 12, 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"), CS Delaware, in its capacity as
agent for itself as a Borrower and for the other Borrowers ("Borrowers' Agent")
and the Required Term Loan Lenders (as defined in the Loan Agreement).
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 now exists 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 and
Required Term Loan Lenders agree to make certain amendments to the Financing
Agreements and Agent and Required Term Loan Lenders are willing to agree to such
amendments, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment Xx. 0, Xxxxx, Xxxxxxxx Xxxx Loan Lenders,
Borrowers 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 8 hereof, the parties hereto agree as
follows:
1. Definitions.
(a) Additional Definition. As used herein, the term "Amendment No. 1" shall
mean this Amendment No. 1 to Financing Agreements by and among Agent, certain of
the Lenders, and Borrowers (as acknowledged and agreed to by the Required Term
Loan Lenders), 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
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limitation, such definition.
(b) Amendment to Definitions.
(i) Section 1.45 of the Loan Agreement is hereby amended to add the
following additional clause (e) thereto immediately following clause (d):
"plus (e) only for purposes of determining compliance with the
financial covenants set forth in Sections 9.18(b) and 9.18(c) of this
Agreement with respect to each of the periods ended after January 31, 2002
and through and including February 1, 2003, the amount of any one-time,
non-recurring pre-tax cash charge (exclusive of non-cash items) in respect
of the closure of not more than one hundred thirty (130) "Fashion Bug"
stores and/or the closure or disposition of all assets in respect of "Added
Dimensions/The Answer" stores, as determined in a manner satisfactory to
Agent and the Required Term Loan Lenders and which cash charge shall not
exceed, in any event, an aggregate amount of $20,000,000 on a pre-tax,
consolidated basis for Parent and its Subsidiaries."
(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. 1 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 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. Sale of Assets, Consolidation, Merger, Dissolution, etc. Section
9.7(b)(iv)(A) of the Loan Agreement is hereby amended by adding "other than in
the case of the closings or dispositions contemplated by Section 1.45(e) hereof"
at the end of such Section 9.7(b)(iv)(A).
3. Indiana Real Property. Section 9.8(l) of the Loan Agreement is hereby
amended by deleting the reference to "one hundred twenty (120) days" in clause
(i)(A) thereof and substituting "two hundred seventy (270) days" therefor.
Section 9.8(l) is hereby further amended by deleting clause (l)(i)(C) thereof in
its entirety and substituting the following therefor:
"(C) the Indebtedness secured by such property arises from loans in
cash or other immediately available funds provided to the owners of the
property, the proceeds of which are used (except to the extent of a
prepayment of the Term Loan permitted hereunder which satisfies each of the
conditions set forth in Section 2.3(b) of the Loan Agreement), to repay the
outstanding principal amount of Revolving Loans, which amount may be
reborrowed,"
4. EBITDA. Section 9.18(b) of the Loan Agreement is hereby amended by
deleting such section in its entirety and substituting the following therefor:
"(b) Until the Term Loan has been paid in full in immediately
available funds, Parent and its Subsidiaries, on a consolidated basis,
shall, as of the end of the following periods, maintain EBITDA in an amount
at least equal to the amount indicated next to such period:
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Period Minimum EBITDA
------ --------------
(i) 12 months ending July 31, 2001 $140,000,000
(ii) 12 months ending October 31, 2001 $140,000,000
(iii) 12 months ending January 31, 2002 $140,000,000
(iv) for the 12 months ending April 30, 2002
and the 12 months ending at the end of
each fiscal quarter thereafter through
and including the fiscal quarter ending
January 31, 2003 $120,000,000
(v) for the 12 months ending April 30, 2003
and the 12 months ending at the end of
each fiscal quarter thereafter $140,000,000
The ending dates listed above shall be deemed to refer to the fiscal
quarter ending closest to such date, which in each case shall be the Saturday
immediately preceding or immediately following such ending date, in accordance
with Section 9.15 hereof.
5. Secured Funded Debt Ratio. Section 9.18(c) of the Loan Agreement is
hereby deleted in its entirety and the following substituted therefor:
"(c) Until the Term Loan has been paid in full in immediately available
funds, Parent and its Subsidiaries, on a consolidated basis, shall, during each
of the following periods, maintain a Secured Funded Debt Ratio not greater than
the amount indicated next to such period:
Period Secured Funded Debt Ratio
------ -------------------------
(i) from the date hereof through
and including January 31, 2002 3.0 to 1
(ii) for the fiscal quarter ending April 30, 2002 2.85 to 1
(iii)for the fiscal quarter ending July 31, 2002 2.75 to 1
(iv) for the fiscal quarter ending October 31, 2002 2.75 to 1
(v) for the fiscal quarter ending January 31, 2003 2.55 to 1
(vi) for the fiscal quarter ending April 30, 2003
and each fiscal quarter thereafter" 3.0 to 1
The ending dates listed above shall be deemed to refer to the fiscal
quarter ending closest to such date, which in each case shall be the Saturday
immediately preceding or immediately following such ending date, in accordance
with Section 9.15 hereof.
6. Term Loan Prepayment. Subject to the satisfaction of each of the
conditions set forth in Section 2.3(b) of the Loan Agreement, notwithstanding
any other provision of Section 2.3 of the Loan Agreement to the contrary,
Borrowers shall prepay, in respect of the Term Loan, to Term Loan Lenders, in
immediately available funds pursuant to Section 9.8(l)(i) of the Loan Agreement:
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(a) on or before the date hereof, the sum of $7,500,000 and (b) on the date of
the execution and delivery of a Refinancing Mortgage in respect of the Indiana
Real Property, with the proceeds of the initial loans secured by such mortgage
(after repayment to Revolving Loan Lenders from such proceeds of the amount of
Loans outstanding to Revolving Loan Lenders based upon Indiana Real Property
Availability), proceeds of such refinancing to the full extent available
therefor in accordance herewith, not to exceed $5,000,000. Any remaining balance
of the proceeds of such refinancing after application as provided in this
Section 6 shall be applied to the repayment of any outstanding amounts in
respect of Revolving Loans. Nothing in this Section 6 shall impair the right of
Borrowers to prepay the Term Loan in whole or in part, subject to the
satisfaction of each of the conditions set forth in Section 2.3(b) of the Loan
Agreement, at any time following the application of the proceeds of the
Refinancing Mortgage in accordance with this Section 6.
7. 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 Guarantors hereby jointly and severally
represent, warrant and covenant with and to Agent, Co-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. 1 (after
giving effect to the amendments to the Financing Agreements made by this
Amendment No. 1).
(b) This Amendment No. 1 has been duly executed and delivered by Borrowers
and Borrowers' Agent and this Amendment No. 1 and the other Financing Agreements
are in full force and effect as of the date hereof, and the agreements and
obligations of Borrowers and Borrowers' Agent contained herein and therein
constitute legal, valid and binding obligations of Borrowers and Borrowers'
Agent enforceable against Borrowers and Borrowers' Agent in accordance with
their respective terms.
8. Amendment Fees.
(a) In consideration of the amendments set forth herein, Borrowers shall,
on the date hereof, pay to Agent for the benefit of the Revolving Loan Lenders,
or Agent, at its option, may charge the account of Borrowers maintained by
Agent, an amendment fee in the amount of $150,000 which fee is fully earned as
of the date hereof and shall constitute part of the Obligations.
(b) In consideration of the amendments set forth herein, Borrowers shall,
on the date hereof, pay to Agent, for the benefit of Term Loan Lenders, or
Agent, at its option, may charge the account of Borrowers maintained by Agent,
and pay to Term Loan Lenders an amendment fee in the amount of $300,000 which
fee is fully earned as of the date hereof and shall constitute part of the
Obligations.
9. Conditions Precedent. This Amendment shall be effective only upon the
satisfaction of each of the following conditions precedent in a manner
satisfactory to Agent.
(a) Agent shall have received an original of this Amendment, duly
authorized, executed and delivered by Borrowers, Borrowers' Agent and Required
Term Loan Lenders; and
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(b) as of the date hereof, and after giving effect to the provisions of
this Amendment, no Event of Default or act, condition or event which with notice
or passage of time or both, would constitute an Event of Default, shall exist or
have occurred and be continuing (including, without limitation, the payments
being made as contemplated and/or required by Section 6(a) and Section 8
hereof).
10. Effect of this Amendment. This Amendment 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 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. 1 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 extent that any provision of the Loan
Agreement or any of the other Financing Agreements are inconsistent with the
provisions of this Amendment, the provisions of this Amendment shall control.
11. 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.
12. 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).
13. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
14. Counterparts. This Amendment 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, 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 by
telefacsimile shall have the same force and effect as delivery of an original
executed counterpart of this Amendment. Any party delivering an executed
counterpart of this Amendment by telefacsimile also shall deliver an original
executed counterpart of this Amendment, but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Amendment as to such party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered by their authorized officers as of the date and
year first above written.
BORROWERS
---------
CHARMING SHOPPES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: ExecutiveVice President
Chief Executive Office:
-----------------------
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
CHARMING SHOPPES OF DELAWARE, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
Chief Executive Office:
-----------------------
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
CSI INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
Chief Executive Office:
-----------------------
0000 Xxxxxxxxxx Xxxx
000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
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FB APPAREL, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
Chief Executive Office:
-----------------------
0000 Xxxxx Xxxx 000X
Xxxxxxxxxxx, Xxxxxxx 00000
LANE XXXXXX, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Executive Vice President
Chief Executive Office:
-----------------------
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxx 00000
CATHERINES STORES CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Executive Vice President
Chief Executive Office:
-----------------------
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
BORROWERS' AGENT
CHARMING SHOPPES OF DELAWARE, INC.,
as Borrowers' Agent
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
Chief Executive Office:
-----------------------
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000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
AGENT
CONGRESS FINANCIAL CORPORATION,
as Administrative Agent, Collateral Agent,
Joint Lead Arranger and Joint Bookrunner
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Title: Vice President
--------------------------
REQUIRED TERM LOAN LENDERS
ABLECO FINANCE LLC
By: /s/ Xxxxx X. Gender
--------------------------
Title: Senior Vice President
--------------------------
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
A2 FUNDING LP
By: A2 Fund Management LLC,
its General Partner
By: /s/ Xxxxx X. Gender
--------------------------
Name: Xxxxx X. Gender
Title: Vice President
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