Exhibit 99.3
WAIVER AND AMENDMENT NO. 3
This WAIVER and AMENDMENT NO. 3 (this "Waiver and Amendment"-
dated as of September 29, 1995 among The First National Bank of
Boston ("FNBB"), The CIT Group/Business Credit, Inc. ("CIT"),
BankAmerica Business Credit, Inc., Congress Financial Corporation,
NatWest Bank N.A., LaSalle Business Credit, Inc. and Sanwa Business
Credit Corporation as the Banks party to the Credit Agreement
hereinafter referred to below and Rose's Stores, Inc. (the
"Borrower").
W I T N E S S E T H:
WHEREAS, the Borrower is a party to the Revolving Credit
Agreement dated as of April 28, 1995 among the Borrower, the Banks,
FNBB as administrative agent (in such capacity, the "Administrative
Agent") and FNBB and CIT as facility agents (in such capacities,
the "Facility Agents") (as such agreement may be amended and
restated, amended, supplemented or modified from time to time, the
"Credit Agreement");
WHEREAS, the Borrower has asked the Majority Banks to (i)
waive the requirements of Section 10.1 of the Credit Agreement for
the single fiscal quarter ended on October 28, 1995 and the two
fiscal quarters ended on such date and (ii) amend certain other
provisions of the Credit Agreement; and
WHEREAS, subject to all of the terms, conditions and
limitations set forth herein, the Majority Banks are willing to (i)
waive the requirements of Section 10.1 of the Credit Agreement for
the single fiscal quarter ended October 28, 1995 and the two fiscal
quarters ended on such date and (ii) amend certain other provisions
of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree to the following:
1. Definitions. Capitalized terms defined in the preceding
preliminary paragraphs shall have such meanings provided therein
and, unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement shall have the meanings assigned
thereto in the Credit Agreement.
2. Waiver. The Majority Banks hereby waive compliance with
the requirements of Section 10.1 of the Credit Agreement (i) for
the single fiscal quarter ended October 28, 1995 and for the two
fiscal quarters ended on such date as such requirements are set
forth in the second sentence of such Section 10.1.
PAGE
3. Amendment to Section 3.2. Subsection (b) of Section 3.2
of the Credit Agreement is hereby amended and restated to read as
follows:
(b) The Borrower agrees to repay the Revolving Credit
Loans such that for a period of thirty consecutive days
(i) during the period from December 1, 1995 to and
including January 31, 1996 and (ii) commencing December
1, 1996, during every period from December 1 to and
including the immediately succeeding February 15 (each
such period in clauses (i) and (ii), the "Cleandown
Period"), the total aggregate outstanding amount of
Revolving Credit Loans shall be no more than (x)
$45,000,000, during such Cleandown Period ending January
30, 1996; provided however, that, for purposes of this
clause (x) of this section 3.2(b) only, any and all
repayments of the Revolving Credit Loans with the
proceeds of tax refunds and rebates received by the
Borrower shall not be treated as reducing the total
aggregate outstanding amount of Revolving Credit Loans;
(y) $27,000,000, during such Cleandown Period ending
February 27, 1997 and (z) $22,000,000, during such
Cleandown Period ending February 15, 1998.
4. Amendment to Section 8.4. Section 8.4 of the Credit
Agreement is amended by (i) deleting the word "and" at the end of
subsection (k) thereof, (ii) deleting the period at the end of
subsection (l) and adding "; and" in replacement thereof and (iii)
adding the following new subsection (m) at the end of such Section
8.4:
(m) as soon as practicable, but in any event within thirty
(30) days after the end of each month in each fiscal year of
the Borrower, a report, in a format designed by the Appraiser,
which sets forth, by merchandise department, amounts and other
information requested by the Appraiser that relate to
Inventory, net sales, gross margins and other items designated
by the Appraiser.
5. Amendment to Section 10.2. Section 10.2 of the Credit
Agreement is amended by:
(i) deleting the lines:
"October 28, 1995 $ 3,300,000 $ 4,000,000"
"January 27, 1996 $ 5,100,000 $ 8,400,000"
in the table in such section and inserting the following lines
in replacement thereof:
"October 28, 1995 $ [Not Tested] [Not Tested]"
"January 27, 1996 $ [Not Tested] [Not Tested]";
PAGE
and (ii) amending and restating the sentence immediately
following the table in such section to read as follows:
In addition, the Borrower shall not permit EBITDA (i) for
the period commencing January 29, 1995 and ending October
28, 1995 to be less than $2,800,000, (ii) for the period
commencing January 29, 1995 and ending December 2, 1995
to be less than $9,500,000, (iii) for the period
commencing January 29, 1995 and ending December 30, 1995
to be less than $20,700,000, (iv) for the fiscal year
ending January 27, 1996 to be less than $12,000,000, (v)
for the fiscal year ending January 25, 1997 to be less
than $14,600,000 and (vi) for the fiscal year ending
January 31, 1998 to be less than $15,800,000."
6. Effectiveness of Waiver and Amendment. The waiver to be
made pursuant to Section 2 of this Waiver and Amendment and the
amendments to be made pursuant to Section 3 through 8 of this
Waiver and Amendment shall become effective upon the later to occur
of (i) the Administrative Agent shall have received counterparts
of this Waiver and Amendment signed by the Majority Banks and the
Borrower and (ii) the Borrower shall have paid to the
Administrative Agent for the pro rata account of each Bank in
accordance with its Commitment Percentage an amendment fee of
$312,500.
7. Representations and Warranties; No Default. The Borrower
hereby represents and warrants to the Banks, the Facility Agent and
the Administrative Agent as follows:
(a) Each of the representations and warranties
contained in the Credit Agreement, the other Loan
Documents or any in any document or instrument delivered
pursuant to or in connection with the Credit Agreement
are true at and as of the date hereof with the same
effect as if made at and as of the date hereof (except
to the extent of changes resulting directly from the
transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes
occurring during the ordinary course of business that
singly or in the aggregate are not materially adverse to
the Banks or the business or financial affairs of the
Borrower, and to the extent that such representations and
warranties relate expressly to an earlier date). No
event has occurred and is continuing on the date hereon
that constitutes a Default or Event of Default.
(b) The execution and delivery by the Borrower of
this Waiver and Amendment and the performance by the
Borrower of its obligations hereunder in accordance with
its terms:
PAGE
(i) are within the corporate powers of the
Borrower, have been duly authorized by all necessary
corporate action, and do not and will not contravene
any provision of law applicable to the Borrower;
(ii) do not require any approval, consent,
order, authorization, or license by, or giving
notice to, or taking any other action with respect
to any governmental or regulatory authority, under
any provisions of any laws or any governmental
rules, regulations, orders or decrees applicable to
and binding upon the Borrower, except such as have
been obtained, and are in full force and effect and
adequate for their purposes;
(iii) do not require any filing, recording or
enrolling of any instrument with any governmental
or regulatory authority of any political subdivision
thereof except such as have been obtained and are
in full force and effect and adequate for their
purposes;
(iv) do not contravene the terms of the
certificate of incorporation, by-laws or other
corporate governance documents;
(v) will not conflict with or result in any
breach or contravention of or the creation of any
Lien under any indenture, agreement, lease,
instrument or undertaking to which the Borrower is
a party or by which any of its properties, assets
or rights is or will become bound or affected; and
(vi) is and will be a valid and legally binding
obligation of the Borrower and is and will be
enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting
generally the enforcement of creditors' rights.
(c) The execution, delivery and effectiveness of
this Waiver and Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power
or remedy of the Administrative Agent, the Facility
Agents or any Bank under the Credit Agreement or any of
the other Loan Documents. Without limiting the
generality of the foregoing, the Borrower agrees and
acknowledges that, except as expressly set forth herein,
this Waiver and Amendment shall not constitute a waiver
by the Banks, the Facility Agents or the Administrative
Agent of any condition, provision or covenant in the
Credit Agreement or any Loan Document, including, without
limitation, any condition to borrowings and shall not
in any way preclude the Banks, the Facility Agents or the
Administrative Agent from exercising all rights, powers
and remedies under and in respect of the Credit
Agreement, the Loan Documents or otherwise .
(d) The Borrower shall reimburse the Administrative
Agent and the Banks for all of their expenses, including,
without limitation, attorneys' fees and expenses,
incurred in connection with the negotiation, preparation,
execution, and administration of the provisions, of this
Waiver and Amendment and the other documents and
instruments contemplated hereby.
8. Governing Law. This Waiver and Amendment shall be deemed
to be a contract under the laws of the State of New York and shall
for all purposes be construed in accordance with and governed by
the laws of said State.
9. Miscellaneous. The captions in this Waiver and Amendment
are for convenience of reference only and shall not define or limit
the provisions hereof. This Waiver and Amendment may be executed
in separate counterparts, each of which when so executed and
delivered shall be an original, but all of which together shall
constitute one instrument.
In proving this Waiver and Amendment, it shall not be necessary to
produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this
Waiver and Amendment as of the day and year first hereinabove set
forth.
BANKS
THE FIRST NATIONAL BANK OF BOSTON
By:/s/ Xxxxxxxxx X. Xxxxx
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By:/s/ Xxxxx Xxxxxx
Title: Vice President
BANKAMERICA BUSINESS CREDIT, INC.
By:/s/ Illegible
Title: Vice President
CONGRESS FINANCIAL CORPORATION
(NEW ENGLAND)
By:/s/ Illegible
Title: Sr. Vice President
NATWEST BANK N.A.
By:/s/ Xxxxxxx X. Xxxxxx
Title: Vice President
LASALLE BUSINESS CREDIT, INC.
By:/s/ Illegible
Title: Assistant Vice President
SANWA BUSINESS CREDIT CORPORATION
By:/s/ Xxxxx [Illegible]
Title: Vice President
BORROWER
ROSE'S STORES, INC.
By:/s/ Xxxxxxxx X. Xxxxxx
Title: CFO
