ITEM 5 (B)
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
---------------------------------------------
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
"Amendment") is made and entered into effective as of the 3rd day
of October, 1996, by and among CPI CORP., a Delaware corporation
("Borrower"), MERCANTILE BANK OF ST. LOUIS NATIONAL ASSOCIATION,
XXXXXX TRUST AND SAVINGS BANK and THE SUMITOMO BANK, LIMITED (as
assignee of The Daiwa Bank, Limited) (collectively, the "Banks")
and MERCANTILE BANK OF ST. LOUIS NATIONAL ASSOCIATION, a national
banking association, as agent for the Banks (in such capacity,
the "Agent").
W I T N E S E T H:
--------------------
WHEREAS, Borrower, the Banks and the Agent are parties to
that certain Revolving Credit Agreement dated July 13, 1995 (the
"Credit Agreement"; all capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to
them in the Credit Agreement as amended by the Amendment); and
WHEREAS, Borrower desires to amend the Credit Agreement in
the manner hereinafter set forth and the Banks and the Agent are
willing to agree thereto on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower, the Banks
and the Agent hereby agree as follows:
1. The definition of "Commitment" set forth in Section 2.01
of the Credit Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
"COMMITMENT shall mean, subject to termination or
reduction as set forth in Section 3.07: with respect to
Mercantile, $25,000,000.00; with respect to Xxxxxx Trust
and Savings Bank, $20,000,000; and with respect to The
Sumitomo Bank, Limited, $15,000,000.00."
2. The definition of "Pro Rata Share" set forth in Section
2.01 of the Credit Agreement is hereby deleted in its entirety
and the following substituted in lieu thereof:
"PRO RATA SHARE shall mean: with respect to
Mercantile, 41.6666667%; with respect to Xxxxxx Trust and
Savings Bank, 33.0000000%; and with respect to The Sumitomo
Bank, Limited, 25%."
3. The definition of "Restricted Payment" set forth in
Section 2.01 of the Credit Agreement is hereby deleted in its
entirety and the following substituted in lieu thereof:
"RESTRICTED PAYMENT shall mean (a) any dividend
(except a dividend in Qualified Stock) on, or any
distribution (except a distribution in Qualified Stock)
in respect of, any shares of Capital Stock or (b) the
redemption, repurchase, retirement or other acquisition
of any shares of Capital Stock (except that the provisions
of clause (b) of this definition shall not apply to (i) the
retirement of any shares of Capital Stock by exchange for,
or from Net Proceeds of a concurrent sale of, shares of
Qualified Stock or (ii) if the Fox Photo/Xxxxxxx Kodak
Transaction is consummated, the redemption by Borrower of
shares of its common stock during the sixty (60) day period
following the date of consummation of the Fox Photo/Xxxxxxx
Kodak Transaction so long as the aggregate amount of
consideration paid by Borrower in connection with all such
redemptions does not exceed the sum of $50,000,000.00)."
4. The following new definitions of "Fox Photo/Xxxxxxx
Kodak Transaction" and "Subscription Agreement" are hereby added
to Section 2.01 of the Credit Agreement:
"FOX PHOTO/XXXXXXX KODAK TRANSACTION" shall mean the
issuance by Fox Photo, Inc. of One Thousand Forty-One
(1,041) shares of common stock of Fox Photo, Inc.,
representing Fifty-One Percent (51%) of the total issued and
outstanding shares of common stock of Fox Photo, Inc., to
Xxxxxxx Kodak Company for a total purchase price of
$56,100,000.00 (subject to adjustment as set forth in
Section 2.3 of the Subscription Agreement) upon the terms
set forth in the Subscription Agreement.
SUBSCRIPTION AGREEMENT shall mean that certain
Subscription Agreement dated August 8, 1996, by and among
Xxxxxxx Kodak Company, Borrower, Consumer Programs Holding,
Inc. and Fox Photo, Inc., the form of which is filed as an
Exhibit to Borrower's Current Report on Form 8-K dated
August 8, 1996.
5. Section 7.01(k) of the Credit Agreement is hereby
deleted in its entirety and the following substituted in lieu
thereof:
"(k) CONSOLIDATED NET WORTH. Borrower will keep and
maintain a Consolidated Net Worth in an amount not less than
(i) at all times prior to February 1, 1997, the sum of
(A) $150,000,000.00 MINUS (B) Ninety Percent (90%) of the
aggregate consideration paid by Borrower to redeem shares
of its common stock during the sixty (60) day period
following the date of consummation of the Fox Photo/Xxxxxxx
Kodak Transaction PLUS (C) Fifty Percent (50%) of the
Consolidated Net Income for each fiscal quarter of Borrower
elapsed during the period from February 5, 1995, to and
including the last day of the fiscal quarter of Borrower
immediately preceding the date of determination hereof,
computed on a cumulative basis for said entire period,
provided that for purposes of the foregoing calculation,
Consolidated Net Income shall be deemed to be zero for any
fiscal quarter for which Consolidated Net Income is less
than or equal to zero and (ii) at all times from and after
February 1, 1997, the sum of (A) $150,000,000.00 MINUS
(B) Eighty Percent (80%) of the aggregate consideration paid
by Borrower to redeem shares of its common stock during the
sixty (60) day period following the date of consummation of
the Fox Photo/Xxxxxxx Kodak Transaction PLUS (C) Fifty
Percent (50%) of the Consolidated Net Income for each fiscal
quarter of Borrower elapsed during the period from
February 5, 1995, to and including the last day of the
fiscal quarter of Borrower immediately preceding the date
of determination hereof, computed on a cumulative basis for
said entire period, provided that for purposes of the fore-
going calculation, Consolidated Net Income shall be deemed
to be zero for any fiscal quarter for which Consolidated net
Income is less than or equal to zero."
6. Section 7.02(a) of the Credit Agreement is hereby
deleted in its entirety and the following substituted in lieu
thereof:
"(a) LIMITATIONS ON DEBT. Borrower will not create,
assume or incur or in any manner be or become liable in
respect of any Debt, and will not cause or permit any
Subsidiary to create, assume or incur or in any manner be
or become liable in respect of any Debt, except:
(i) the Borrower's Obligations;
(ii) Debt of any Subsidiary to Borrower or any other
Subsidiary;
(iii) Debt of any Subsidiary to any Person other than
Borrower or any other Subsidiary, provided that after
giving effect thereto (A) the aggregate principal amount
of all Debt described in this Section 7.02(a) (iii)
(other than any Debt incurred solely to purchase or
otherwise acquire or construct Property) does not exceed
five percent (5%) of Consolidated Capitalization and
(B) the aggregate principal amount of all Debt described
in this Section 7.02(a) (iii) (including all Debt
incurred solely to purchase or otherwise acquire or
construct Property) does not exceed ten percent (10%) of
Consolidated Capitalization; and
(iv) other Debt of Borrower, provided that after
giving effect thereto (A) the aggregate principal amount
of Consolidated Funded Debt does not exceed forty
percent (40%) of Adjusted Consolidated Capitalization
and (B) the aggregate principal amount of Consolidated
Debt does not exceed (1) fifty percent (50%) of Adjusted
Consolidated Capitalization at any time prior to
February 1, 1997, or (2) forty-five percent (45%) of
Adjusted Consolidated Capitalization at any time on or
after February 1, 1997.
Any corporation which becomes a Subsidiary after the date
hereof shall for all purposes of this Section 7.02(a) be
deemed to have created, assumed or incurred at the time it
becomes a Subsidiary all Debt of such corporation existing
immediately after it becomes a Subsidiary. Any Debt of
Borrower or a Subsidiary to a former Subsidiary shall be
deemed to have been created, assumed or incurred immediately
after such Subsidiary is no longer a Subsidiary."
7. Contemporaneously with the execution of this Amendment,
Borrower shall pay the Agent for the ratable benefit of the
Banks a nonrefundable amendment fee in the amount of $7,500.00.
8. Notwithstanding any provision contained in this
Amendment to the contrary:
(a) this Amendment shall not be effective unless
and until the Agent shall have received:
(i) this Amendment, duly executed by
Borrower and each of the Banks;
(ii) evidence satisfactory to the Agent that
(A) the minimum consolidated net worth covenant
contained in Section 6A(2) of the Note Agreement has
been amended to read the same in all material respects
as Section 7.01(k) of the Credit Agreement as amended
by this Amendment, (B) the limitation on additional
debt covenant contained in Section 6C(2) (iii) of the
Note Agreement has been amended to read the same in all
material respects as Section 7.02(a) (iv) of the Credit
Agreement as amended by this Amendment, and (C) the
"Required Holders" (as defined in the Note Agreement)
have consented to the redemption by Borrower of shares
of its common stock during the sixty (60) day period
following the date of consummation of the Fox Photo/
Xxxxxxx Kodak Transaction so long as the aggregate
amount of consideration paid by Borrower in connection
with all such redemptions does not exceed the sum of
$50,000,000.00;
(iii) a copy of resolutions of the Board of
Directors of Borrower, duly adopted, which authorize
the execution, delivery and performance of this
Amendment, certified by the Secretary of Borrower;
(iv) an incumbency certificate, executed by the
Secretary of Borrower, which shall identify by name and
title and bear the signatures of all of the officers of
Borrower executing this Amendment; and
(v) certificates of corporate good standing of
Borrower issued by the Secretaries of States of the
States of Delaware and Missouri; and
(b) the provisions of Paragraphs 5 and 6 of this
Amendment shall not be effective unless and until the Agent
shall have received evidence satisfactory to the Agent that
(i) the Fox Photo/Xxxxxxx Kodak Transaction has been
consummated and (ii) the total consideration paid by
Borrower to redeem shares of its common stock during the
sixty (60) day period following the date of consummation of
the Fox Photo/Xxxxxxx Kodak Transaction was not less than
$45,000,000.00.
9. Borrower hereby agrees to reimburse the Agent upon
demand for all out-of-pocket costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses,
incurred by the Agent in the preparation, negotiation and
execution of this Amendment. All of the obligations of Borrower
under this Paragraph shall survive the payment of the Borrower's
Obligations and the termination of the Credit Agreement.
10. All references in the Credit Agreement to this
"Agreement" and any other references of similar import shall
henceforth mean the Credit Agreement as amended by this
Amendment. Except to the extent specifically amended by this
Amendment, all of the terms, provisions, conditions, covenants,
representations and warranties contained in the Credit Agreement
shall be and remain in full force and effect and the same are
hereby ratified and confirmed.
11. This Amendment shall be binding upon and inure to the
benefit of Borrower, the Banks, the Agent and their respective
successors and assigns, except that Borrower may not assign,
transfer or delegate any of its rights or obligations hereunder.
12. Borrower hereby represents and warrants to the Agent and
the Banks that:
(a) the execution, delivery and performance by Borrower
of this Amendment are within the corporate powers of
Borrower, have been duly authorized by all necessary
corporate action and require no action by or in respect of,
consent of or filing or recording with, any governmental or
regulatory body, agency or official or any other Person;
(b) the execution, delivery and performance by
Borrower of this Amendment do not conflict with, or result in
a breach of the terms, conditions or provisions of, or
constitute a default under or result in any violation of, the
terms of the Certificate of Incorporation or By-Laws of
Borrower, any applicable law, rule, regulation, order, writ,
judgment or decree of any court or governmental or regulatory
agency or instrumentality or any agreement, document or
instrument to which Borrower is a party or by which it is
bound or to which it is subject;
(c) this Amendment has been duly executed and
delivered by Borrower and constitutes the legal, valid
and binding obligation of Borrower enforceable in
accordance with its terms; and
(d) as of the date hereof, all of the
representations and warranties of Borrower set forth in
the Credit Agreement are true and correct and no Default
of Event of default under or within the meaning of the
Credit Agreement has occurred and is continuing.
13. In the event of any inconsistency or conflict between
this Amendment and the Credit Agreement, the terms, provisions
and conditions of this Amendment shall govern and control.
14. This Amendment shall be governed by and construed in
accordance with the Substantive laws of the State of Missouri
(without reference to conflict of law principles).
15. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT,
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT
ENFORCEABLE. TO PROTECT BORROWER, THE BANKS AND THE AGENT FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY
BORROWER, THE BANKS AND THE AGENT COVERING SUCH MATTERS ARE
CONTAINED IN THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT
AND THE OTHER TRANSACTION DOCUMENTS, WHICH CREDIT AGREEMENT AS
AMENDED BY THIS AMENDMENT AND OTHER TRANSACTION DOCUMENTS ARE A
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENTS AMONG
BORROWER, THE BANKS AND THE AGENT, EXCEPT AS BORROWER, THE BANKS
AND THE AGENT MAY LATER AGREE IN WRITING TO MODIFY THEM.
16. This Amendment may be signed in any number of
counterparts (including telecopy counterparts), each of which
shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
17. This Amendment supersedes that certain First Amendment
to Credit Agreement dated effective as of October 1, 1996, by and
among Borrower, the Banks and the Agent (the "Original First
Amendment"), which Original First Amendment never became
effective because the condition precedent set forth in subclause
(B) of clause (ii) of subparagraph (a) of Paragraph 9 thereof was
not satisfied and which original First Amendment is hereby
declared to be null and void by Borrower, the Banks and the
Agent.
IN WITNESS WHEREOF, Borrower, the Banks and the Agent have
executed this First Amendment to Revolving Credit Agreement
effective as of the 3rd day of October, 1996.
CPI CORP.
By /s/ Xxxxx Xxxxxx
-------------------------------
Title: Treasurer/Chief Financial Officer
---------------------------------
MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Assistant Vice President
------------------------------
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Title: Vice President
-------------------------------
THE SUMITOMO BANK, LIMITED
By /s/ Xxxxxxx X. X. Xxxxx
------------------------------
Xxxxxxx X. X. Xxxxx
Title: Vice President
-------------------------------
By /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Title: Vice President
------------------------------
MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION, as agent
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Assistant Vice President
------------------------------
