EXHIBIT 4.5
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER (this "Amendment"), dated as of December
29, 1999, among HCI DIRECT, INC. (formerly known as 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:
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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 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.
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1. The reference to "December 31, 1999" in definition of IRF
Maturity Date in Section 10 of the Credit Agreement is changed to read "March
31, 2000".
2. The obligations of the Borrower to satisfy (i) the
requirements of Section 8.12 for the Test Period ending at the end of the fiscal
quarter ended in December, 1999 and (ii) the requirements of Section 8.13 as of
the end of the fiscal quarter ended in December, 1999 are hereby waived.
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 Amendment Effective Date, both before and after giving effect to this
Amendment.
2. The 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
"Amendment Effective Date") when each of the Borrower, the Required Banks and
each Bank with 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: Xxxxxxx Xxxxxx
(facsimile number 212-354-8113).
6. So long as the Amendment Effect 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 Amendment Effective Date, a consent fee
equal to 0.125% of the sum of (x) its Revolving commitment as in effect
immediately prior to the Amendment Effective Date plus (y) the aggregate
outstanding principal amount of Term Loans immediately prior to the amendment
Effective Date and (ii) to each Bank with an Incremental Revolving Commitment
which has executed a counterpart hereof on or prior to 5:00 P.M. (New York time)
on the Amendment Effective Date, a fee equal to 0.25% of its Incremental
Revolving Commitment as in effect on the 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.
7. From and after the 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.
* * *
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.
HCI DIRECT, INC.
By:_________________________
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Agent
By:_________________________
Name:
Title:
BANK POLSKA KASA OPIEKI, S.A.
By:_________________________
Name:
Title:
EUROPEAN AMERICAN BANK
By:_________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:_________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NEW YORK and/or NASSAU BRANCH
By:_________________________
Name:
Title:
BANK OF AMERICA, N.A.
formerly, NationsBank, N.A.)
By:_________________________
Name:
Title:
