Exhibit 4.1
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of July 23, 1997
(this "Amendment"), amends in certain respects the Second Amended and Restated
Credit Agreement (the "Loan Agreement") dated as of May 6, 1996 between
Xxxxxxxx'x, Inc. (the "Borrower"), and BankAmerica Business Credit Inc., as
Agent and sole lender (the "Lender"), as amended.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lender amend certain of
the provisions set forth in Sections 1.1, 6.1, 6.3 and 6.4 of the Loan
Agreement;
WHEREAS, the Lender is willing to modify the provisions of Sections
1.1, 6.1, 6.3 and 6.4 of the Loan Agreement on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in this Amendment and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower and
the Lender hereby agree as follows.
SECTION 1. DEFINED TERMS. Terms defined in the Loan Agreement and not
otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
SECTION 2. AMENDMENTS TO LOAN AGREEMENT.
(a)The definition of "Net Worth" set forth in Section 1.1 of
the Loan Agreement is hereby deleted in its entirety and
the following substituted therefor:
"Net Worth" means the excess of total assets over
total liabilities, each to be determined in
accordance with GAAP consistent with those applied in
the preparation of the financial statements referred
to in Section 5.1."
(b)Section 6.1 of the Loan Agreement is hereby amended by
deleting the amounts set forth opposite the Fiscal
Quarters ending on July 31, 1997 and each Fiscal Quarter
thereafter in the table set forth in such Section 6.1 and
substituting the following therefor:
"July 31 and October 31, 1997 $21,000,000
January 31 and April 30, 1998 $21,000,000
July 31 and October 31, 1998 $24,000,000
January 30 and April 30, 1999 $24,000,000
July 31, 1999 and each Fiscal $30,000,000
Quarter thereafter"
(c)Section 6.3 of the Loan Agreement is hereby amended
by deleting the amounts set forth opposite the Fiscal
Quarters ending on July 31, 1997 and each Fiscal
Quarter thereafter in the table set forth in such
Section 6.3 and substituting the following therefor:
"July 31, 1997 1.6 to 1.0
October 31, 1997 1.6 to 1.0
January 31, 1998 1.6 to 1.0
April 30, 1998 1.6 to 1.0
July 31, 1998 1.7 to 1.0
October 31, 1998 1.7 to 1.0
January 30, 1999 1.8 to 1.0
April 30, 1999 1.8 to 1.0
July 31, 1999 2.2 to 1.0
October 31, 1999 2.2 to 1.0
January 29, 2000 and each 2.25 to 1.0"
Fiscal Quarter thereafter
(d)Section 6.4 of the Loan Agreement is hereby amended by
deleting the amounts set forth opposite the Fiscal
Quarters ending July 31, 1997 and each Fiscal Quarter
thereafter in the table set forth in such Section 6.4 and
substituting therefor:
"July 31, 1997 $17,500,000
October 31, 1997 $19,000,000
January 31, 1998 $19,000,000
April 30, 1998 $20,000,000
July 31, 1998 $20,000,000
October 31, 1998 $20,000,000
January 30, 1999 $20,000,000
April 30, 1999 $20,000,000
July 31, 1999 $20,000,000
October 31, 1999 $27,000,000
January 29, 2000 and $27,000,000"
each Fiscal Quarter thereafter
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective as of the date above written when the Agent shall have received the
following:
(a) counterparts of this Amendment executed by the Borrower
and the Lender;
(b) payment by Borrower to Lender of an amendment fee in the
amount of $25,000; and
(c) such other certificates, representations, instruments and
other documents as the Lender may require, in form and
substance satisfactory to the Lender.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lender and the Agent that (i) the execution, delivery and
performance of this Amendment by the Borrower is within its corporate powers and
has been duly authorized by all necessary corporate action, (ii) no consent,
approval, authorization of, or declaration or filing with, any Public Authority,
and no consent of any other Person, is required in connection with the
execution, delivery and performance of this Amendment, except for those already
duly obtained, (iii) this Amendment has been duly executed by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against it in accordance with its terms and (iv) the execution, delivery and
performance by the Borrower of this Amendment does not and will not conflict
with, or constitute a violation or breach of, or constitute a default under, or
result in the creation or imposition of any Lien upon the property of Borrower
or any of its Subsidiaries by reason of the terms of (a) any contract, mortgage,
Lien, lease, agreement, indenture, or instrument to which Borrower or any
Subsidiary is party or which is binding upon it, (b) any Requirement of Law
applicable to Borrower or any Subsidiary, or ( c) the Certificates or Articles
of Incorporation or By-laws of Borrower or any Subsidiary.
SECTION 5. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS,
5.1 On and after the date hereof, each reference in the Loan
Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in
the other Loan Documents to the Loan Agreement, shall
mean and be a reference to the Loan Agreement as amended
hereby.
5.2 Except as specifically amended above, all of the terms of
the Loan Agreement shall remain unchanged and in full
force effect.
5.3 The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right,
power or remedy of the Lender or the Agent under the Loan
Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision of the Loan
Agreement or any of the other Loan Documents.
SECTION 6. EXECUTION IN COUNTERPARTS. 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 to be
an original and all of which taken together shall constitute one and the same
instrument.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by, and
shall be construed and enforced in accordance with, the laws of the State of New
York.
SECTION 8. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment or be given any substantive effect.
IN WITNESS WHEREOF, This Amendment has been duly executed as of the
date first written above.
XXXXXXXX'X INC.
By: \S\ Xxxxxx Xxxxx
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Title: Senior Vice President
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BANKAMERICA BUSINESS CREDIT, INC.,
as Lender and Agent
By: \S\ Xxxxx Xxxxxxxxx
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Title: Vice President
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