EXHIBIT 4.12
AMENDMENT NO. 6 TO FINANCING AGREEMENTS
AMENDMENT No. 6, dated as of March 13, 2003, 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"), and 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").
W I T N E S S E T H :
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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), Amendment No. 4, dated September 23, 2002,
and Amendment No.5 dated February 12, 2003, 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
amend Section 9.11 of the Loan Agreement to permit repurchases of Parent's
Capital Stock and Agent on behalf of itself and the Required Lenders is willing
to agree to such amendments, subject to the terms and conditions contained
herein; and
WHEREAS, by this Amendment No. 6, Agent, and 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 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. 6" shall mean this Amendment No. 6 to Financing
Agreements by and among 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.
(b) Amendment to Definitions. 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.
6 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. Use of Proceeds. Section 6.7 of the Loan Agreement is hereby amended by
adding the following clause at the end thereof, immediately after the phrase
"with Section 2 of Amendment No. 2":
" and, except, that, Parent may use proceeds of Revolving Loans until March
31, 2004 to purchase shares of the Capital Stock of Parent so long as any
such purchase (a) does not constitute or otherwise cause a violation of
Regulation U and (b) is otherwise is in compliance with Section 9.11
hereof."
3. Dividends and Redemptions. Section 9.11 of the Loan Agreement is hereby
deleted and the following is substituted therefor:
" No Borrower, Obligor or any other Subsidiary of Parent shall, directly or
indirectly, declare or pay any dividends in cash or other of its assets on
account of any shares of any class of capital stock of such Borrower,
Obligor or any other Subsidiary of Parent now or hereafter outstanding, or
set aside or otherwise deposit or invest any sums for such purpose, or
redeem, retire, defease, purchase or otherwise acquire any shares of any
class of capital stock (or set aside or otherwise deposit or invest any
sums for such purpose) for any consideration other than common stock or
apply or set apart any sum, or make any other distribution (by reduction of
capital or otherwise) in respect of any such shares or agree to do any of
the foregoing, except, that,
(a) dividends may be paid by a Borrower (other than Parent), Obligor,
or any other Subsidiary of Parent directly or indirectly to Parent or
to any other Borrower or Obligor of which it is a Subsidiary, and
(b) (i) at Parent's option, Parent may redeem or repurchase all or any
of the Subordinated Notes outstanding as of the date of Amendment
No.2, using a portion of the proceeds of the Convertible 2002 Senior
Notes and the proceeds of Revolving Loans, and (ii) Parent may
repurchase its Capital Stock using a portion of the proceeds received
by Parent from the issuance of the Convertible 2002 Senior Notes, and
the proceeds of Revolving Loans, provided, that, (A) the maximum
aggregate amount paid to repurchase Capital Stock of Parent and retire
the Subordinated Notes (including amounts paid with the proceeds of
Revolving Loans) shall not exceed $100,000,000, (B) at the time of
each such purchase of any Capital Stock or any Subordinated Note, and
after giving effect thereto, 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, and
(C) no repurchases of Capital Stock of Parent or redemptions of
Subordinated Notes pursuant to this Section 9.11(b) shall be made
after March 1, 2003, and
(c) Parent may repurchase its Capital Stock consisting of common stock
after March 1, 2003 provided, that, as to any such repurchase, each of
the following conditions is satisfied: (i) as of the date of the
payment for such repurchase and after giving effect thereto, no Event
of Default or any 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, (ii) such repurchase shall
be paid in cash with funds legally available therefor (which funds may
include proceeds of Revolving Loans), (iii) such repurchase shall not
violate any law or regulation or the terms of any indenture, agreement
or undertaking to which any Borrower is a party or by which any
Borrower or its property is bound, (iv) Excess Availability shall have
been at least $50,000,000, as of the close of business for each of the
thirty (30) consecutive day period immediately preceding such
repurchase and as of the date of any such payment for such repurchase
and after giving effect thereto, Excess Availability shall be not less
than $50,000,000, (v) the aggregate amount of all payments for such
repurchases shall not exceed $35,000,000 and the amount paid by Parent
per share of common stock shall not exceed $5.00 per share, (vi) the
aggregate number of shares of common stock of Parent repurchased shall
not exceed 8,100,000 shares of common stock , and (vii) no repurchases
shall be made after March 31, 2004."
4. Additional Covenants. In addition to the continuing representations,
warranties and covenants heretofore or hereafter made by Borrowers and
Borrowers' Agent to Agent and Lenders pursuant to the Financing Agreements,
Borrowers hereby, jointly and severally, agree in favor of Agent, and Lenders
that (a) Parent, has as of the date hereof, either purchased (or converted into
common stock of Parent) all of the Subordinated Notes that were outstanding as
of date of Amendment No.2, and (b) no payments permitted to be made in
accordance with Section 9.11 (c) of the Agreement will be used to purchase
Subordinated Notes.
5. Conditions to Effectiveness. The 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 (the "Effective Date"):
(a) Agent shall have received an original of this Amendment No. 6,
duly authorized, executed and delivered by Borrowers, Obligors and
Borrowers' Agent; and
(b) as of the date hereof, and after giving effect to the provisions
of this Amendment No. 6, 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.
6. Effect of this Amendment No. 6. This Amendment No.6 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. To
the extent that any provision of the Loan Agreement or any of the other
Financing Agreements, including without limitation Amendment No. 2, are
inconsistent with the provisions of this Amendment No. 6, the provisions of this
Amendment No. 6 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. 6.
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. 6 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. 6 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. 6, 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. 6 by telefacsimile shall have the same force and effect as
delivery of an original executed counterpart of this Amendment No. 6. Any party
delivering an executed counterpart of this Amendment No.6 by telefacsimile also
shall deliver an original executed counterpart of this Amendment No. 6, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment No.6 as to such
party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 to
be duly executed and delivered by their authorized officers as of the date and
year first above written.
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
President
FB APPAREL, INC.
By: ____________________
Xxxx X. Xxxxxxx
President
LANE XXXXXX, INC.
By: _____________________
Xxxx X. Xxxxxxx
President
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CATHERINES STORES CORPORATION
By: _____________________
Xxxx X. Xxxxxxx
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:______________________________
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CONSENTED TO:
By Each of the Obligors
on Exhibit A Annexed Hereto
___________________________
Its:_______________________
By Each of the Obligors
on Exhibit B Annexed Hereto
___________________________
Its:_______________________
