MAIDENFORM, INC. FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
MAIDENFORM,
INC.
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this
“Amendment”)
is
dated as of February 8, 2006 and entered into by and among Maidenform, Inc.,
a
New York corporation (successor to MF Merger Corporation) (“Company”),
Maidenform Brands, Inc. (successor to MF Acquisition Corporation), a Delaware
corporation (“Holdings”),
the
financial institutions party to the Credit Agreement (as defined below)
(“Lenders”)
and
BNP Paribas, as administrative agent (in such capacity, “Administrative
Agent”)
and,
for purposes of Section 4 hereof, each of the guarantors listed on the signature
pages hereof, and is made with reference to that certain Amended and Restated
Credit Agreement dated as of June 29, 2005
(the
“Credit
Agreement”),
by
and among Company, Holdings, Lenders and Administrative Agent. Capitalized
terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
RECITALS
WHEREAS, Company,
Holdings and Lenders desire to amend the Credit Agreement to (i) permit a stock
repurchase program and (ii) make certain other amendments as set forth below;
NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:
|
Section 1.
|
AMENDMENTS
TO THE CREDIT AGREEMENT
|
1.1
Amendments
to Section 1: Definitions
A. Subsection
1.1 of the Credit Agreement is hereby amended by adding thereto the following
definitions, which shall be inserted in proper alphabetical order:
“Stock
Repurchase”
means a
repurchase by Holdings of its Capital Stock pursuant to and in accordance with
the terms of a stock repurchase program authorized by the Governing Body of
Holdings.
B. Subsection
1.1 of the Credit Agreement is hereby further amended by deleting the definition
of “Consolidated
Excess Cash Flow”
therefrom in its entirety and substituting the following therefor:
“Consolidated Excess Cash Flow”
means,
for any period, an amount (if positive) equal to (i) the sum, without
duplication, of the amounts for such period of (a) Consolidated EBITDA and
(b)
the Consolidated Working Capital Adjustment minus
(ii) the
sum,
without duplication, of the amounts for such period of (a) mandatory repayments
of the Obligations (but only to the extent the funds applied for such purpose
are included in the calculation of Consolidated EBITDA, and, in any case,
excluding repayments of Revolving Loans except to the extent the Revolving
Loan
Commitment Amount is permanently reduced in connection with such repayments),
(b) scheduled repayments of Consolidated Total Debt and Restricted Junior
Payments made in accordance with clause (i) of subsection 7.5, (c) Consolidated
Capital Expenditures (net of any proceeds of any related financings with respect
to such expenditures), (d) Consolidated Cash Interest Expense,
(e) current taxes based on income of Company and its Subsidiaries and
payable in cash with respect to such period and (f) the aggregate amount of
cash
items contemplated by clauses (vii), (viii), (ix), (x), (xi), (xiii), (xiv)
and
(xv) of the definition of Consolidated EBITDA.
1.2
Amendments
to Section 2: Amounts and Terms of Commitments and Loans
A. Subsection
2.5B of the Credit Agreement is hereby amended by deleting it in its entirety
and substituting the following therefor:
“B. Revolving
Loans; Swing Line Loans.
The
proceeds of the Revolving Loans and any Swing Line Loans shall be applied by
Company (a) for working capital and other general corporate purposes, which
may
include (i) the making of intercompany loans to any of Company’s wholly-owned
Subsidiaries, in accordance with subsection 7.1(iv), for their own general
corporate purposes and (ii) the making of Restricted Junior Payments to Holdings
to permit one or more Stock Repurchases, in accordance with subsection 7.5(ii),
(b) to pay the IPO Fees or to make the IPO Fees Payment or an Investment in
Holdings for the purpose of permitting Holdings to pay the IPO Fees and (c)
to
make the Permitted Dividend Payment, provided that the amount of the Permitted
Dividend Payment together with the aggregate amount of the Management Bonuses
shall not exceed $15,000,000.”
1.3
Amendments
to Section 6: Company’s Affirmative Covenants
A. Subsection
6.1(xii) of the Credit Agreement is hereby amended by deleting the phrase
“as
soon
as practicable and in any event within 30 days following the beginning of each
Fiscal Year”
and
substituting the following therefor:
“as soon as practicable and in any event within 45 days following the beginning
of each Fiscal Year”.
1.4
Amendments
to Section 7: Company’s Negative Covenants
A. Subsection
7.5 of the Credit Agreement is hereby amended by deleting it in its entirety
and
substituting the following therefor:
“7.5 Restricted
Junior Payments.
Company
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment;
2
provided
that (i)
Company may make Restricted Junior Payments to Holdings (a) in an aggregate
amount not to exceed $5,000,000 in any Fiscal Year, to the extent necessary
to
permit Holdings to pay general administrative costs and expenses, (b) so long
as
no Event of Default shall have occurred and be continuing or shall be caused
thereby, in an aggregate amount not to exceed $2,000,000 in any Fiscal Year,
with unused amounts being available in future Fiscal Years, to the extent
necessary to permit Holdings to repurchase shares of Capital Stock of Holdings
(or options or warrants to acquire Capital Stock of Holdings) from employees
of
Company (other than pursuant to a Stock Repurchase), (c) to the extent necessary
to permit Holdings to discharge the consolidated tax liabilities of Holdings
and
its Subsidiaries, in each case so long as Holdings applies the amount of any
such Restricted Junior Payment for such purpose, (d) to the extent necessary
to
permit Holdings to pay dividends required in connection with the exercise of
Rollover Options to the extent that, with respect to the exercise of each
Rollover Option, the amount of such dividends does not exceed the amount of
the
exercise price paid, (e) that constitute the Permitted Dividend Payment,
provided
that the
amount of the Permitted Dividend Payment together with the aggregate amount
of
the Management Bonuses shall not exceed $15,000,000 and (f) to the extent
necessary to permit Holdings to redeem all outstanding shares of the Holdings
Perpetual Preferred Stock and all outstanding options to purchase the Holdings
Perpetual Preferred Stock, in an amount equal to the redemption price thereof
(including any redemption premium), to pay the unpaid dividends thereon and
to
pay the IPO Fees payable directly by Holdings; provided
that
such Restricted Junior Payment shall not exceed the amount of the IPO proceeds
contributed by Holdings to Company plus $5,500,000; and (ii) Company may make
Restricted Junior Payments to Holdings to the extent necessary to permit one
or
more Stock Repurchases; provided
that (a)
the aggregate amount of such Stock Repurchases shall not exceed $25,000,000;
(b)
the Consolidated Leverage Ratio as at the last day of the immediately preceding
Fiscal Quarter, after giving effect to any such Stock Repurchase and any other
Stock Repurchases since the end of such Fiscal Quarter, in each case, as though
such Stock Repurchases had been made on the last day of such Fiscal Quarter,
is
less than 3.50:1:00; and (c) after giving effect to any such Stock Repurchase,
the Revolving Loan Commitment then in effect would exceed the Total Utilization
of Revolving Loan Commitments by not less than $25,000,000.”
1.5
Substitution
of Exhibit
A. Exhibit VII
to the
Credit Agreement is hereby amended by deleting said Exhibit VII
in its
entirety and substituting in place thereof a new Exhibit VII
in the
form of Exhibit VII
to this
Amendment.
|
Section 2.
|
CONDITIONS
TO EFFECTIVENESS
|
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the “First
Amendment Effective Date”):
A. Administrative
Agent shall have received copies of this Amendment executed by Company and
each
of the other Loan Parties.
3
B. Administrative
Agent shall have received copies of this Amendment executed by Requisite
Lenders.
C. All
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Administrative Agent, acting on behalf of
Lenders, and its counsel shall be satisfactory in form and substance to
Administrative Agent and such counsel, and Administrative Agent and such counsel
shall have received all such counterpart originals or certified copies of such
documents as Administrative Agent may reasonably request.
D. Company
shall pay (i) to Administrative Agent, for ratable distribution to each Lender
executing this Amendment on or before 5:00 P.M. (New York time) on February
6,
2006, an amendment fee equal to 0.125% of the sum of such Lender’s Term Loan
Exposure plus such Lender’s Revolving Loan Exposure, and (ii) to Administrative
Agent for its own account such fees in such amounts as have been separately
agreed upon between Company and Administrative Agent.
|
Section 3.
|
COMPANY’S
REPRESENTATIONS AND
WARRANTIES
|
In order to induce Lenders to enter into this Amendment and to amend the Credit
Agreement in the manner provided herein, Company represents and warrants to
each
Lender that the following statements are true, correct and complete:
A. Corporate
Power and Authority.
Company
has all requisite corporate power and authority to enter into this Amendment
and
to carry out the transactions contemplated by, and perform its obligations
under, the Credit Agreement as amended by this Amendment (the “Amended
Agreement”).
B. Authorization
of Agreements.
The
execution and delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate action on the
part of Company.
C. No
Conflict.
The
execution and delivery by Company of this Amendment and the performance by
Company of the Amended Agreement do not and will not (i) violate any provision
of any law or any governmental rule or regulation applicable to Company or
any
of its Subsidiaries, the Organizational Documents of Company or any of its
Subsidiaries or any order, judgment or decree of any court or other agency
of
government binding on Company or any of its Subsidiaries, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both)
a
default under any Contractual Obligation of Company or any of its Subsidiaries,
(iii) result in or require the creation or imposition of any Lien upon any
of the properties or assets of Company or any of its Subsidiaries (other than
Liens created under any of the Loan Documents in favor of Administrative Agent
on behalf of Lenders or Permitted Encumbrances), or (iv) require any
approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of Company or any of its Subsidiaries.
4
D. Governmental
Consents.
The
execution and delivery by Company of this Amendment and the performance by
Company of the Amended Agreement do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by,
any
federal, state or other governmental authority or regulatory body.
E. Binding
Obligation.
This
Amendment has been duly executed and delivered by Company, and this Amendment
and the Amended Agreement are the legally valid and binding obligations of
Company, enforceable against Company in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by equitable principles relating to
enforceability.
F. Incorporation
of Representations and Warranties From Credit Agreement.
The
representations and warranties contained in Section 5 of the Credit Agreement
are and will be true, correct and complete in all material respects on and
as of
the First Amendment Effective Date to the same extent as though made on and
as
of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
G. Absence
of Default.
No
event has occurred and is continuing or will result from the consummation of
the
transactions contemplated by this Amendment that would constitute an Event
of
Default or a Potential Event of Default.
|
Section 4.
|
ACKNOWLEDGEMENT
AND CONSENT
|
Each
guarantor (or pledgor) listed on the signatures pages hereof (each, a
“Guarantor”)
hereby
acknowledges and agrees that any of the subsidiary, Guaranty and Collateral
Document (each, a “Credit
Support Document”)
to
which it is a party or otherwise bound shall continue in full force and effect
and that all of its obligations thereunder shall be valid and enforceable and
shall not be impaired or limited by the execution or effectiveness of this
Amendment. Each Guarantor represents and warrants that all representations
and
warranties contained in the Amended Agreement and the Credit Support Documents
to which it is a party or otherwise bound are true, correct and complete in
all
material respects on and as of the First Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as
of
such earlier date.
Each Guarantor acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Guarantor is
not
required by the terms of the Credit Agreement or any other Loan Document to
consent to the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this Amendment or any
other Loan Document shall be deemed to require the consent of such Guarantor
to
any future amendments to the Credit Agreement.
5
|
Section 5.
|
MISCELLANEOUS
|
A. Reference
to and Effect on the Credit Agreement and the Other Loan Documents.
(i)
On
and
after the First Amendment Effective Date, each reference in the Credit Agreement
to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii)
Except
as
specifically amended by this Amendment, the Credit Agreement and the other
Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
(iii)
The
execution, delivery and performance of this Amendment shall not, except as
expressly provided herein, constitute a waiver of any provision of, or operate
as a waiver of any right, power or remedy of Administrative Agent or any Lender
under, the Credit Agreement or any of the other Loan Documents.
B. Fees
and Expenses.
Company
acknowledges that all costs, fees and expenses as described in subsection 10.2
of the Credit Agreement incurred by Administrative Agent and its counsel with
respect to this Amendment and the documents and transactions contemplated hereby
shall be for the account of Company.
C. Headings.
Section and subsection headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
D. Applicable
Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts;
Effectiveness
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Amendment (other than
the provisions of Section 1 hereof, the effectiveness of which is governed
by
Section 2 hereof) shall become effective upon the execution of a
counterpart hereof by Company, Requisite Lenders and each of the Guarantors
and
receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
6
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be duly executed and delivered
by
their respective officers thereunto duly authorized as of the date first written
above.
COMPANY
MAIDENFORM,
INC.
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
First
Amendment to Amended and Restated Credit Agreement
S-1
GUARANTORS
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
MAIDENFORM
INTERNATIONAL, LTD. (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
MAIDENFORM
ONLINE, INC. (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
MF
RETAIL, INC. (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
▇▇▇▇▇▇▇▇▇
NEEDLE CRAFT, INC. (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
First
Amendment to Amended and Restated Credit Agreement
S-2
▇▇▇▇▇▇▇▇
NEEDLECRAFT, INC. (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
NCC
INDUSTRIES, INC. (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
CRESCENT
INDUSTRIES, INC. (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
MAIDENFORM
(INDONESIA) LIMITED (for
purposes of Section 4 only)
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President-General Counsel
First
Amendment to Amended and Restated Credit Agreement
S-3
LENDERS
BNP
PARIBAS,
individually
and as Administrative Agent
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title:
|
Director
|
and
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title:
|
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-4
ARCHIMEDES
FUNDING III, LTD.
By:
West
Gate Horizons Advisors LLC,
as
Collateral Manager
By: /s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Senior
Credit Analyst
|
First
Amendment to Amended and Restated Credit Agreement
S-5
ARCHIMEDES
FUNDING IV (CAYMAN), LTD.
By:
West
Gate Horizons Advisors LLC,
as
Collateral Manager
By: /s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Senior
Credit Analyst
|
First
Amendment to Amended and Restated Credit Agreement
S-6
NEMEAN
CLO, LTD.
By:
West
Gate Horizons Advisors LLC,
as
Collateral Manager
By: /s/▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Senior
Credit Analyst
|
First
Amendment to Amended and Restated Credit Agreement
S-7
SUNAMERICA
LIFE INSURANCE COMPANY
By:
AIG
Global Investment Corp.,
its
Investment Advisor
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-8
GALAXY
CLO 1999-1 LTD.
By:
AIG
Global Investment Corp.,
as
Collateral Manager
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-9
SUNAMERICA
SENIOR FLOATING RATE FUND, INC.
By:
AIG
Global Investment Corp.,
its
Investment Sub-Advisor
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-10
SATURN
TRUST
By:
AIG
Global Investment Corp., Inc.,
its
Investment Advisor
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-11
GALAXY
V
CLO, LTD
By:
AIG
Global Investment Corp.,
its
Collateral Manager
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-12
GALAXY
IV
CLO, LTD
By:
AIG
Global Investment Corp.,
its
Collateral Manager
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-13
GALAXY
III CLO, LTD
By:
AIG
Global Investment Corp.,
its
Collateral Manager
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-14
GALAXY
CLO 2003-1, LTD
By:
AIG
Global Investment Corp.,
its
Collateral Manager
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-15
WHITEHORSE
III, LTD.
By:
WhiteHorse Capital Partners, L.P.
as
Collateral Manager
By: /s/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Partner
|
First
Amendment to Amended and Restated Credit Agreement
S-16
LIGHTPOINT
CLO-2004-1, LTD.
LIGHTPOINT
CLO III, LTD.
LIGHTPOINT
CLO V, LTD.
By: /s/▇▇▇▇▇▇▇
▇. ▇▇▇ ▇▇▇▇
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇ ▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-17
LANDMARK
CDO Limited
By:
Aladdin Capital Management, LLC,
as
Manager
By: /s/▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
|
Title:
|
Authorized
Signatory
|
First
Amendment to Amended and Restated Credit Agreement
S-18
LANDMARK
IV CDO Limited
By:
Aladdin Capital Management, LLC,
as
Manager
By: /s/▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
|
Title:
|
Authorized
Signatory
|
First
Amendment to Amended and Restated Credit Agreement
S-19
LANDMARK
V CDO Limited
By:
Aladdin Capital Management, LLC,
as
Manager
By: /s/▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
|
Title:
|
Authorized
Signatory
|
First
Amendment to Amended and Restated Credit Agreement
S-20
ARABESQUE
TRUST
By: /s/▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇. ▇’▇▇▇▇▇▇
|
|
Title:
|
Authorized
Signatory
|
First
Amendment to Amended and Restated Credit Agreement
S-21
KZH
SOLEIL LLC
By: /s/Wal
▇▇▇ ▇▇▇
|
Name:
|
Wal
▇▇▇ ▇▇▇
|
|
Title:
|
Authorized
Agent
|
First
Amendment to Amended and Restated Credit Agreement
S-22
KZH
SOLEIL-2 LLC
By: /s/Wal
▇▇▇ ▇▇▇
|
Name:
|
Wal
▇▇▇ ▇▇▇
|
|
Title:
|
Authorized
Agent
|
First
Amendment to Amended and Restated Credit Agreement
S-23
CAISSE
DE
DÉPOT ET PLACEMENT DUE QUÉBEC
By: /s/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
Title:
|
Director
|
By: /s/▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
Title:
|
Vice-President
|
First
Amendment to Amended and Restated Credit Agreement
S-24
OLYMIC
CLO I LTD
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Chief
Operating Officer
|
First
Amendment to Amended and Restated Credit Agreement
S-25
WHITNEY
CLO I LTD
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Chief
Operating Officer
|
First
Amendment to Amended and Restated Credit Agreement
S-26
ACA
CLO
2005-1, LIMITED
By:
ACA
Management, LLC,
as
Investment Advisor
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-27
GMAC
COMMERCIAL FINANCE LLC
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
First
Amendment to Amended and Restated Credit Agreement
S-28
GLADSTONE
INVESTMENT CORPORATION
By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
Title:
|
Associate
|
First
Amendment to Amended and Restated Credit Agreement
S-29
BLACKROCK
GLOBAL FLOATING RATE INCOME TRUST
BLACKROCK
SENIOR INCOME SERIES
BLACKROCK
SENIOR INCOME SERIES II
MAGNETITE
IV CLO, LIMITED
MAGNETITE
V CLO, LIMITED
SENIOR
LOAN PORTFOLIO
SENIOR
LOAN FUND 2
By: /s/▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
Authorized
Signatory
|
First
Amendment to Amended and Restated Credit Agreement
S-30
FM
LEVERAGED CAPITAL FUND I
By: /s/
▇▇▇▇ ▇ ▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇ ▇▇▇▇▇
|
|
Title:
|
Senior
Partner
|
First
Amendment to Amended and Restated Credit Agreement
S-31
CALLIDUS
DEBT PARTNERS CLO FUND II, LTD.
By:
Callidus Capital Management, LLC,
its
Collateral Manager
By: /s/▇▇▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
Senior
Managing Director
|
First
Amendment to Amended and Restated Credit Agreement
S-32
MARATHON
CLO I LTD.
By:
Marathon Asset Management LLC,
its
Collateral Manager
By: /s/
▇▇▇▇▇ ▇. Hanover
|
Name:
|
▇▇▇▇▇
▇. Hanover
|
|
Title:
|
Authorized
Signatory
|
First
Amendment to Amended and Restated Credit Agreement
S-33
ANTARES
CAPITAL CORP.
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
Title:
|
Managing
Director
|
First
Amendment to Amended and Restated Credit Agreement
S-34
ANTARES
FUNDING L.P.
By:
JPMorgan Chase Bank, N.A. as trustee of the Antares Funding Trust created under
the Trust Agreement dated as of November 30, 1999
as
a
Lender
By: /s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
AVP
|
First
Amendment to Amended and Restated Credit Agreement
S-35
▇▇▇▇▇▇▇▇▇▇▇
SENIOR FLOATING RATE FUND
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
Title:
|
Manager
|
First
Amendment to Amended and Restated Credit Agreement
S-36
HARBOURVIEW
CLO IV, LTD.
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
Title:
|
Manager
|
First
Amendment to Amended and Restated Credit Agreement
S-37
HARBOURVIEW
CLO V, LTD.
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
Title:
|
Manager
|
First
Amendment to Amended and Restated Credit Agreement
S-38
▇▇▇▇▇
Fargo
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
SVP
|
First
Amendment to Amended and Restated Credit Agreement
S-39
EXHIBIT
VII
[FORM
OF] COMPLIANCE CERTIFICATE
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
(1)
I
am the
duly elected [Title] of Maidenform, Inc. a New York corporation (“Company”);
(2)
I
have
reviewed the terms of that certain Amended and Restated Credit Agreement dated
as of June 29, 2005, as amended, supplemented or otherwise modified to the
date
hereof (said Amended and Restated Credit Agreement, as so amended, supplemented
or otherwise modified, being the “Amended
and Restated Credit Agreement”,
the
terms defined therein and not otherwise defined in this Certificate (including
Attachment No. 1 annexed hereto and made a part hereof) being used in this
Certificate as therein defined), by and among Company, the financial
institutions party thereto as Lenders, and BNP Paribas, as Administrative Agent,
and I have made, or have caused to be made under my supervision, a review in
reasonable detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by the attached financial
statements; and
(3)
The
examination described in paragraph (2) above did not disclose, and I have no
knowledge of, the existence during or at the end of the accounting period
covered by the attached financial statements of any condition or event that
constitutes an Event of Default or Potential Event of Default[, except as set
forth below], and I have no knowledge as at the date of this Certificate of
any
condition or event that constitutes an Event of Default or Potential Event
of
Default[, except as set forth below].
(4)
Company
has been in compliance with each of the covenants in Section 7 of the Amended
and Restated Credit Agreement at all times during and at the end of the
accounting period covered by the attached financial statements and as of the
date of this Certificate.
[Set
forth [below] [in a separate attachment to this Certificate] are all exceptions
to paragraph (3) above listing, in detail, the nature of the condition or event,
the period during which it has existed and the action which Company has taken,
is taking, or proposes to take with respect to each such condition or
event:
__________________________________________________________________________________________]
(5)
During the accounting period covered by the attached financial statements,
[Option A: Company has not made Restricted Junior Payments to Holdings] [Option
B: Company has made Restricted Junior Payments to Holdings to the extent
necessary to permit one or more Stock Repurchases in an aggregate amount for
such accounting period equal to [$________] and, in each case, such Stock
Repurchase has been in compliance with subclauses (a), (b) and (c) of subsection
7.5(ii)].
VII-1
Compliance
Certificate
The
foregoing certifications, together with the computations set forth in Attachment
No. 1 annexed hereto and made a part hereof and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
__________ day of _____________, ____ pursuant to subsection 6.1(iv) of the
Amended and Restated Credit Agreement.
| MAIDENFORM, INC. | |
| By:____________________________ | |
| Name:__________________________ | |
| Title:___________________________ |
VII-2
Compliance
Certificate
ATTACHMENT
NO. 1
TO
COMPLIANCE CERTIFICATE
This
Attachment No. 1 is attached to and made a part of a Compliance Certificate
dated as of ____________, ____ and pertains to the period from ____________,
____ to ____________, ____. Subsection references herein relate to subsections
of the Amended and Restated Credit Agreement.
|
A.
|
Minimum Fixed Charge Coverage Ratio(for the four-Fiscal Quarter period ending _____________, ___ ) | |||||
| Consolidated EBITDA: | ||||||
| 1. |
Consolidated
Net Income (adjusted in accordance with the terms of clause (i) of
the
definition of Consolidated EBITDA):
|
$
|
_____________
|
|||
| 2. |
Consolidated
Interest Expense:
|
$
|
_____________
|
|||
|
3.
|
Provisions
for taxes based on income:
|
$
|
_____________
|
|||
|
4.
|
Total
depreciation expense:
|
$
|
_____________
|
|||
|
5.
|
Total
amortization expense:
|
$
|
_____________
|
|||
|
6.
|
Other
non-cash items reducing Consolidated Net Income (other than any such
non-cash item to the extent it represents an accrual of or reserve
for
cash expenditures in any future period):
|
$
|
_____________
|
|||
| 7. |
Net
cash charges incurred in connection with the closure of and consequent
termination of ordinary course business activities at retail outlet
Facilities to the extent that such cash charges have not actually
been
paid:
|
$
|
_____________
|
|||
| 8. |
Fees,
costs and expenses incurred on or prior to the Closing Date in connection
with the transactions contemplated by the Acquisition
Agreement:
|
$
|
_____________
|
|||
| 9. |
Fees
paid pursuant to the Management Agreement and permitted under subsection
7.9:
|
$
|
_____________
|
|||
|
10.
|
Rating
agency fees paid to obtain or maintain ratings on Indebtedness of
Company
and its Subsidiaries:
|
$
|
_____________
|
|||
VII-A-3
Compliance
Certificate
| 11. |
Net
cash charges incurred in connection with the closure of the Florida
Facility and the Mexican Facilities in an aggregate amount not to
exceed
$7,000,000:
|
$
|
_____________
|
|||
| 12. |
Any
non-cash charges, adjustments and expenses after the Closing Date
relating
to the application of purchase accounting:
|
$
|
_____________
|
|||
|
13.
|
Fees,
costs, and expenses incurred on or prior to the Restatement Date
in
connection with the amendment of the Original Amended & Restated
Credit Agreement and related waivers, consents, or approvals from
any of
the Lenders.
|
$
|
_____________
|
|||
| 14. |
IPO
Fees paid directly by the Company.
|
$
|
_____________
|
|||
|
15.
|
Management
Bonuses (together with the Permitted Dividend Payment not to exceed
$15,000,000).
|
$
|
_____________
|
|||
| 16. |
Other
non-cash items increasing Consolidated Net Income (other than any
such
non-cash item to the extent it will result in the receipt of cash
payments
in any future period and any non-cash items netted against non-cash
charges in line 6):
|
$
|
_____________
|
|||
| 17. |
Consolidated
EBITDA (1+2+3+4+5+6+7+8+9+10
+11+/-12+13+14+15-16):
|
$
|
_____________
|
|||
| 18. |
Consolidated
Capital Expenditures that are unfinanced or financed with proceeds
of the
Loans:
|
$
|
_____________
|
|||
| Consolidated Fixed Charges: | ||||||
| 19. |
Consolidated
Cash Interest Expense:
|
$
|
_____________
|
|||
| 20. |
Scheduled
principal payments in respect of Consolidated Total Debt (excluding
the
aggregate amount of all rents paid or payable under all Capital
Leases):
|
$
|
_____________
|
|||
| 21. |
Provisions
for taxes based on income, calculated so as to take into account
all net
operating loss carry-forwards, credits and other tax benefits available
to
Company and its Subsidiaries:
|
$
|
_____________
|
|||
VII-A-4
Compliance
Certificate
| 22. |
Restricted
Junior Payments other than the Permitted Dividend Payment (together
with
the Management Bonuses not to exceed $15,000,000) and the IPO Fees
Payment:
|
$
|
_____________
|
|||
| 23. |
Consolidated
Fixed Charges (19+20+21+22):
|
$
|
_____________
|
|||
| 24. |
Fixed
Charge Coverage Ratio (17)-(18):(23):
|
____:1.00
|
||||
| 25. |
Minimum
ratio required under subsection 7.6B:
|
1.25:1.00
|
||||
|
|
||||||
|
B.
|
Maximum Leverage Ratio(as of _____________, ____) | |||||
| 1. |
Consolidated
Total Debt:
|
$
|
_____________
|
|||
| 2. |
Consolidated
EBITDA (A.17 above):
|
$
|
_____________
|
|||
| 3. |
Leverage
Ratio (1):(2):
|
____:1.00
|
||||
| 4. |
Maximum
ratio permitted under subsection 7.6B:
|
____:1.00
|
||||
|
|
||||||
| C. | Consolidated Capital Expenditures | |||||
| 1. |
Maximum
amount of Consolidated Capital Expenditures permitted under subsection
7.8
for Fiscal Year without regard to carryover amount:
|
$
|
_____________
|
|||
| 2. |
Consolidated
Capital Expenditures for prior Fiscal Year:
|
$
|
_____________
|
|||
| 3. |
Maximum
amount of Consolidated Capital Expenditures permitted under subsection
7.8
for prior Fiscal Year:
|
$
|
_____________
|
|||
| 4. |
Excess
of permitted amount of Consolidated Capital Expenditures for prior
Fiscal
Year over Consolidated Capital Expenditures in prior Fiscal Year
(3-2):
|
$
|
_____________
|
|||
| 5. |
Maximum
permitted amount of carryover permitted Consolidated Capital Expenditures
from prior Fiscal Year (50% of C.3):
|
$
|
_____________
|
|||
VII-A-5
Compliance
Certificate
| 6. |
Permitted
carryover Consolidated Capital Expenditure Amount from prior Fiscal
Year
(smaller of (4) or (5)):
|
$
|
_____________
|
|||
| 7. |
Consolidated
Capital Expenditures for Fiscal Year-to-date:
|
$
|
_____________
|
|||
| 8. |
Maximum
permitted under subsection 7.8 (1 + 6):
|
$
|
_____________
|
|||
| D. | Stock Repurchases | |||||
|
Stock
Repurchase Date
|
Amount
of Stock Repurchase
|
Aggregate
Amount of Stock Repurchases as of the Stock Repurchase Date (maximum
amount permitted under subsection 7.5 is $25,000,000)
|
Consolidated
Leverage Ratio (maximum ratio permitted under subsection 7.5 is
3.50:1:00)
|
Revolving
Loan Commitment minus
Total Utilization of Revolving Loan Commitments as of the Stock Repurchase
Date (minimum amount permitted under subsection 7.5 is
$25,000,000)
|
||
|
$__________
|
$_____________
|
____:1.00
|
$_____________
|
|||
|
$__________
|
$_____________
|
____:1.00
|
$_____________
|
|||
|
$__________
|
$_____________
|
____:1.00
|
$_____________
|
|||
|
$__________
|
$_____________
|
____:1.00
|
$_____________
|
|||
|
$__________
|
$_____________
|
____:1.00
|
$_____________
|
|||
VII-A-6
Compliance
Certificate