EXHIBIT 10.2
SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
THIS SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (the "Second
Amendment"), is made and entered into this 3 day of September, 2004, by and
between MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation,
successor in interest to Allfirst Bank (the "Bank"), and XXXXX*S DISTRIBUTION
COMPANY, a Delaware corporation (the "Borrower"), and with the joinder of
XXXXX*S CORP. and ALLOY, INC., jointly and severally (the "Guarantors").
BACKGROUND:
A. Borrower and Bank entered into a Construction Loan Agreement dated
August 6, 1999, which was amended by an Amendment to Construction Loan Agreement
dated April 19, 2004 (as amended, the "Loan Agreement"). The Agreement is
incorporated herein by reference and made a part hereof. All capitalized terms
used herein without definition which are defined in the Agreement shall have the
meanings set forth therein.
B. Borrower and Bank have agreed to further amend the Loan Agreement.
C. Borrower has no defense, charge, defalcation, claim, plea, demand,
set-off or counterclaim to or against the Loan Agreement, the Loan Documents or
any document(s) or instrument(s) related thereto or associated therewith.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. That the above Background is incorporated herein by reference.
2. That paragraph 3(q) of the Loan Agreement be and hereby is amended to
provide that Alloy, Inc. and, from and after the date that Alloy, Inc. no longer
owns a majority of the voting power of the capital stock of xXXxX*S Corp. (i)
xXXxX*s Corp. (ii) the parent company of xXXxX*S Corp. or (iii) the entity into
which xXXxX*S Corp. may be merged, shall achieve and maintain on a quarterly
rolling twelve months basis (or full fiscal year basis) during the term of the
Loan a Funds Flow Coverage Ratio of at least 1.6 to 1.0. "Funds Flow Coverage
Ratio" shall mean the sum of (i) Cash Flow from Operating Activities before
changes in operating assets and liabilities, (ii) Cash interest expense and
(iii) Unrestricted cash and marketable securities, divided by the sum of (a)
Cash interest expense and (b) Current maturities of long term debt."
3. That the Borrower reaffirms and restates the representations and
warranties set forth in Section 2 of the Agreement, as amended by this Second
Amendment, and all such representations and warranties shall be true and correct
on the date hereof with the same force and effect as if made on such date,
except as they may specifically refer to an earlier date(s). The Borrower
represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to the Lender that (i) this Second Amendment has
been duly authorized, executed and delivered and constitute a legal, valid and
binding obligation of the Borrower, and is enforceable in accordance with its
terms; (ii) the Borrower is not in default under the Agreement or any of the
other Loan Documents, and the Borrower is in full compliance with all of the
terms and conditions thereof; (iii) no event exists which with the passage of
time, notice, or both, will constitute an Event of Default under the Agreement
or any of the other Loan Documents; and (iv) there have been no material adverse
changes in the Borrower's finances or operations which would cause the
Borrower to be in default under any of the financial covenants contained in the
Agreement or any of the other Loan Documents.
4. That the terms and conditions, paragraph sections, collateral
requirements, representations and warranties of the Agreement and Loan
Documents, together with all understandings by and between the parties to this
Second Amendment evidenced by writings of the same or subsequent date, not in
conflict with the above modifications under this Second Amendment, shall remain
in full force and effect and are hereby ratified, reaffirmed and confirmed.
5. That all references to the Agreement in the Loan Documents and the
other documents and instruments delivered pursuant to or in connection
therewith, as well as in writings of the same or subsequent date, shall mean the
Agreement as amended hereby and as each may in the future be amended, restated,
supplemented or modified from time to time.
6. That the parties hereto shall, at any time, and from time to time
following the execution of this Second Amendment, execute and deliver all such
further instruments and take all such further action as may be reasonably
necessary or appropriate in order to carry out the provisions of this Second
Amendment.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have caused this Second Amendment to be executed as of the day and year first
above written.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxx, Vice President
"Bank"
ATTEST: xXXxX*s DISTRIBUTION COMPANY
By: /s/ By: /s/
-------------------------- -------------------------------------
Title: Secretary Title: Chief Operating Officer
-------------------------------------
"Borrower"
ATTEST: xXXxX*s CORP.
By: /s/ By: /s/
-------------------------- -------------------------------------
Title: Secretary Title: Chief Operating Officer
-------------------------------------
"Guarantors"
ATTEST: ALLOY, INC.
By: /s/ By: /s/
-------------------------- -------------------------------------
Title: Secretary Title: President
-------------------------------------
"Guarantors"
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