Exhibit 10.2
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EXECUTION COPY
AMENDMENT No. 2
AMENDMENT NO. 2 (this "Amendment"), dated as of October 21, 1999,
among: XXXXXX & XXXXX, INC., a corporation duly organized and validly existing
under the laws of the State of Delaware (the "Company"); each of the
Subsidiaries of the Company identified under the caption "SUBSIDIARY GUARANTORS"
on the signature pages hereto (individually, a "Subsidiary Guarantor" and,
collectively, the "Subsidiary Guarantors" and, together with the Company, the
"Obligors"); each of the lenders named under the caption "Lenders" on the
signature pages hereto (individually, a "Lender" and, collectively, the
"Lenders"); THE CHASE MANHATTAN BANK, in its capacity as Swingline Bank under
Section 2.01(b) of the Credit Agreement (in such capacity, together with its
successors in such capacity, the "Swingline Bank"); and THE CHASE MANHATTAN
BANK, as agent for the Lenders (in such capacity, together with its successors
in such capacity, the "Administrative Agent").
The Company, the Subsidiary Guarantors, the Lenders and the
Administrative Agent are parties to an Amended and Restated Credit Agreement
dated as of November 18, 1997 (as heretofore modified and supplemented and in
effect on the date hereof, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit (by making of loans and
issuing letters of credit) to be made by said Lenders to the Company in an
aggregate principal or face amount not exceeding $850,000,000. In connection
with the proposed acquisition by the Company (or one of its Subsidiaries) of
Babbage's Etc. (as hereinafter defined), the Company, the Subsidiary Guarantors,
the Lenders and the Administrative Agent wish to amend the Credit Agreement in
certain respects and, accordingly, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Use of Defined Terms; Rules of Usage. Unless the context
shall otherwise require, capitalized terms used and not defined herein shall
have the meanings assigned thereto in Section 1 of the Credit Agreement for all
purposes hereof, including all recitals set forth above; and the rules of
interpretation set forth in Section 1 of the Credit Agreement shall apply to
this Amendment.
ARTICLE II
AMENDMENTS
SECTION 2.1 New Definitions. Section 1.01 of the Credit Agreement is
hereby amended to insert therein in the appropriate alphabetical order the
following definitions:
"'Babbage's Etc. Acquisition' shall mean the acquisition by
the Company or one of its Subsidiaries of all of the membership
interests in Babbage's Etc. for a consideration consisting of cash
payable upon the consummation of the acquisition of up to $215,000,000,
cash payable in 2001 of up to $10,000,000, cash payable in 2002 of up
to $10,000,000 and an additional amount, not to exceed $50,000,000, to
repay in full outstanding Indebtedness under Babbage's Etc.'s existing
revolving credit facility.
"'Babbage's Etc.' shall mean Babbage's Etc. LLC, a limited
liability company organized under the laws of the state of Delaware."
"'Subordinated Debt' shall mean Indebtedness of the Obligors
in an aggregate principal amount not to exceed $300,000,000,
(a) which has no scheduled amortization on or prior
to the Revolving Credit Commitment Termination Date;
(b) which is subordinated to the prior payment in
full in cash of the obligations of the Obligors hereunder and
under the other Basic Documents such that (i) no payments in
respect of any such Indebtedness (whether principal, interest
or otherwise, but excluding certain subordinated securities
received in connection with a bankruptcy reorganization of an
Obligor and excluding payments made from a sinking, defeasance
or similar fund) may be made while any amount under the Credit
Agreement or any other Basic Document is due and unpaid, and
(ii) no payments (excluding certain subordinated securities
received in connection with a bankruptcy reorganization of an
Obligor and excluding payments made from a sinking, defeasance
or similar fund) in respect of any such Indebtedness may be
made during any 179-day period commencing on notice being
given to the trustee for the holders of such Indebtedness of
the occurrence of any Event of Default (other than a payment
default described in the foregoing clause (c)(i)), subject to
then-customary limitations on the number of such periods;
(c) the terms and conditions of which will not
restrict any of the Obligors from creating any Liens upon any
of their respective Properties, whether now owned or hereafter
acquired, securing the obligations of the Obligors under this
Agreement and the other Basic Documents;
(d) the terms and conditions of which do not contain
any provision permitting the maturity of such Indebtedness to
be accelerated upon the occurrence of a Default hereunder or
Event of Default hereunder (but which may contain a provision
permitting acceleration of such Indebtedness upon the
acceleration of the Loans hereunder);
(e) the terms and conditions of which contain
covenants which are no more restrictive to the Obligors than
the covenants in this Agreement; and
(f) the other covenants and events of default of
which (when taken as a whole) substantially reflect
then-current market terms and conditions for similar issues
of subordinated Indebtedness."
SECTION 2.2 Amendment to Definitions. The definition of "Interest Rate
Protection Agreement" in Section 1.01 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"'Interest Rate Protection Agreement' shall mean, for any
Person, a swap, cap, collar or option agreement or similar arrangement
between such Person and one or more financial institutions providing
for the transfer or mitigation of interest rate or other risks either
generally or under specific contingencies."
SECTION 2.3. Amendment to Sublimit for Letters of Credit. Section 2.03
of the Credit Agreement is hereby amended by deleting the figure "$45,000,000"
from clause (ii) of the first paragraph of Section 2.03 therein and replacing
the same with the figure "$100,000,000".
SECTION 2.4. Amendment to Prohibition of Fundamental Changes. Section
9.05 of the Credit Agreement is hereby amended by deleting the period at the end
of clause (d)(v) therein and replacing the same with "; and" and (b) by adding
the following immediately after clause (d)(v) therein:
"(vi) the Company or any Subsidiary of the Company may convey,
sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, the xxxxxxxx.xxx. division of Babbage's Etc."
SECTION 2.5. Amendment to Limitation on Indebtedness.
(a) Section 9.07 of the Credit Agreement is hereby amended by (a)
deleting the period at the end of clause (i) therein and replacing the same with
"; and" and (b) by adding the following immediately after clause (i) therein:
"(j) Subordinated Debt."
(b) Section 9.12 of the Credit Agreement is hereby amended: (a) by
adding the words "or any Subordinated Debt" after the words "Senior Subordinated
Debt" and (b) by adding the words "or the documents governing such Subordinated
Debt" after the words "Senior Subordinated Debt Documents."
SECTION 2.6. Amendment to Limitation on Investments. Section 9.08 of
the Credit Agreement is hereby amended by:
(a) adding the following language immediately following the first
appearance of the word "to" in clause (j) therein:
"(x) the Babbage's Etc. Acquisition and (y)";
(b) by deleting the figure "$150,000,000" from clause (i) of
subparagraph (j) therein and replacing the same with the figure "$250,000,000";
and
(c) by deleting the figure "$75,000,000" from clause (iii) of
subparagraph (g) therein and replacing the same with the figure "$100,000,000".
SECTION 2.7. Amendment to Limitation Dividend Payments. Section 9.09 of
the Credit Agreement is hereby amended by deleting the figure "$50,000,000" from
clause (ii)(x) of subparagraph (b) therein and replacing the same with the
figure "$200,000,000".
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties. The Company represents and
warrants to the Lenders as follows:
(a) that the representations and warranties set forth in Section 8 of
the Credit Agreement are true and complete on the date hereof as if made on and
as of the date hereof (or, if such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date) and as
if each reference in said Section 8 to "this Agreement" included reference to
this Amendment; and
(b) no Default has occurred and is continuing.
ARTICLE IV
CONDITIONS PRECEDENT TO AMENDMENT NO. 2
SECTION 4.1 Conditions Precedent. This Amendment and all amendments to
the Credit Agreement as provided for herein shall become effective, as of the
date hereof, upon the satisfaction of the following conditions precedent:
(a) Execution. This Amendment shall have been duly executed
and delivered by each Obligor, the Administrative Agent, the Swingline
Bank and the Majority Lenders.
(b) Purchase Agreement. The Administrative Agent shall have
received certified copies of each agreement governing the Babbage's
Etc. Acquisition, together with all schedules and exhibits attached
thereto.
(c) Release of Liens, Etc. Any outstanding Indebtedness of
Babbage's Etc. (including all interest, prepayment premiums and other
amounts payable in connection therewith, but excluding any Indebtedness
of Babbage's Etc. that will remain outstanding after the Babbage's Etc.
Acquisition and is permitted to be outstanding under Section 9.07 of
the Credit Agreement) shall have been paid in full, and all Liens
securing payment of any such Indebtedness shall have been released and
the Agent shall have received appropriate Uniform Commercial Code
Termination Statements, or other appropriate instruments, evidencing
such releases. In addition, the Agent shall have received the results
of appropriate Uniform Commercial Code searches with respect to
Babbage's Etc.
(d) Corporate Documents; Etc. The Administrative Agent shall
have received the documents described in Section 7.01(a) of the Credit
Agreement with respect to Babbage's Etc., and with respect to any
intermediate corporation through which the Company will hold the
membership interests in Babbage's Etc. (a "Corporate Member"), together
with the certificates representing the capital stock or any other
equity interest of Babbage's Etc. and such Corporate Member, duly
endorsed in blank in pledge to the Administrative Agent, and such duly
executed Uniform Commercial Code financing statements as the
Administrative Agent shall have requested in order to perfect the
security interests in Property of Babbage's Etc. and such Corporate
Member created pursuant to the Security Agreement.
(e) Consents, Etc. The Administrative Agent shall have
received certified copies of all documents evidencing any necessary
corporate action, consents and governmental approvals (if any) with
respect to the Babbage's Etc. Acquisition, including evidence of
compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
(f) Security Agreement. An Amendment to the Security
Agreement, substantially in the form of Exhibit A hereto, shall have
been duly authorized, executed and delivered by the Company, the
Subsidiary Guarantors (including Babbage's Etc. and any Corporate
Member) and the Administrative Agent.
(g) Joinder. A joinder agreement, substantially in the form
of Exhibit B hereto, shall have been duly authorized, executed and
delivered by Babbage's Etc. and any Corporate Member.
(h) Litigation. A certificate of a senior officer of the
Company to the effect that, on and as of the date of the Babbage's Etc.
Acquisition, there are no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory agency, pending
or (to the knowledge of the Company) threatened against the Company or
any of its Subsidiaries that would reasonably be likely to have, either
individually or in the aggregate, a Material Adverse Effect.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendment Fee. The Company promises to pay to each Lender
that executes this Amendment on or prior to October 26, 1999 a fee in an amount
equal to 1/10 of 1% of such Lender's Revolving Credit Commitment on such day.
SECTION 5.2 Entire Agreement. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect (except that each
reference in the Credit Agreement to "this Agreement" shall be deemed to be a
reference to the Credit Agreement as amended by this Amendment).
SECTION 5.3 Counterparts. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
amendatory
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
SECTION 5.4 Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
XXXXXX & XXXXX, INC.
By: /s/Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Treasurer
SUBSIDIARY GUARANTORS
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X. XXXXXX BOOKSELLER, INC.
By: /s/Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Treasurer
XXXXXX & XXXXX BOOKSELLERS, INC.
By: /s/Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Treasurer
MARBORO BOOKS CORP.
By: /s/Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Treasurer
DOUBLEDAY BOOK SHOPS, INC.
By: /s/Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Treasurer
CCI HOLDINGS, INC.
By: /s/Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President, Treasurer
LENDERS
THE CHASE MANHATTAN BANK
By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title:Vice President
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
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Name: Xxxxxxxxx Xxxx
Title:Executive Director
ING (U.S.) CAPITAL LLC
By: /s/ Xxxx Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
THE BANK OF NOVA SCOTIA
By: /s/ J. Xxxx Xxxxxxx
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Name: J. Xxxx Xxxxxxx
Title:Authorized Signatory
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ J. Xxxxxxx Xxxxxx
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Name: J. Xxxxxxx Xxxxxx
Title:Senior Vice President
COoPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch
By:
Name:
Title:
By:
Name:
Title:
MELLON BANK, N.A.
By: /s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
DEUTSCHE BANK AG, New York Branch
and/or Cayman Islands Branch
By: /s/Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
Title:Director
By: /s/Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
Title:Assistant Vice President
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG
By: /s/Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title:Assistant Vice President
By: /s/Xxxxxxxx Xxxxxxxx
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Name:Xxxxxxxx Xxxxxxxx
Title:Senior Vice President
HIBERNIA NATIONAL BANK
By: /s/Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title:Senior Vice President
XXXXXX BANK PLC, New York Branch
By: /s/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title:Vice President
By: /s/Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title:Vice President
CREDIT LYONNAIS, New York Branch
By: /s/Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title:Vice President
THE BANK OF NEW YORK
By: /s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:Vice President
MERCANTILE BANK OF ST. LOUIS
By: /s/Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title:Officer
STB DELAWARE FUNDING TRUST I
By:
Name:
Title:
SUMMIT BANK
By: /s/Xxxxxxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxxxxx
Title:Vice President
XXXXX FARGO BANK N.A.
By: /s/Xxxxxxxx X. X'Xxxxxxxx
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Name: Xxxxxxxx X. X'Xxxxxxxx
Title:Vice President and Relationship
Manager
By: /s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
Name:
Title:
THE FUJI BANK, LIMITED,
New York Branch
By: /s/Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title:Vice President and Manager
ABN-AMRO BANK, N.V.
By: /s/Xxxxxx Xxxxxx
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Name:Xxxxxx Xxxxxx
Title:Vice President
By: /s/Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title:Group Vice President
FIRST HAWAIIAN BANK
By: /s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title:Vice President, Manager
THE SUMITOMO BANK, LIMITED,
New York Branch
By: /s/Xxxxxx X. Xxxxxxxxx Xx.
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Name: Xxxxxx X. Xxxxxxxxx Xx.
Title:Senior Vice President
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:Managing Director
BANK OF MONTREAL
By: /s/X.X. XxXxxxxx
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Name:X.X. XxXxxxxx
Title:Director
THE FIRST NATIONAL BANK OF CHICAGO
By:
Name:
Title:
Allfirst Bank, formerly known as
THE FIRST NATIONAL BANK OF MARYLAND
By: /s/Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
FLEET NATIONAL BANK
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:Vice President
SAKURA BANK, LIMITED
By: /s/Xxxxxxxxx Xxxxxx
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Name: Xxxxxxxxx Xxxxxx
Title:Senior Vice President
THE SANWA BANK LIMITED
By:
Name:
Title:
SUNTRUST BANK, ATLANTA
By: /s/W. Xxxxx Xxxxxx
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Name:W. Xxxxx Xxxxxx
Title:Vice President
By:
Name:
Title:
TOKAI BANK, LTD.
By:
Name:
Title:
WACHOVIA CORPORATE SERVICES, INC.
By: /s/Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title:Vice President
BANK ONE NA
By: /s/Xxxx Xxxxxx
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Name:Xxxx Xxxxxx
Title:Senior Vice President
HSBC BANK USA
By: /s/Xxxx Xxxx
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Name:Xxxx Xxxx
Title:Assistant Vice President
SWINGLINE BANK
THE CHASE MANHATTAN BANK
By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title:Vice President
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title:Vice President