EXHIBIT 10.26
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
XXXXXXXXX XXXXX, INC.
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of October 23, 2002
(this "Amendment"), by and among XXXXXXXXX XXXXX, INC. (the "Borrower"), a
California corporation having its principal place of business at 0000 Xxxxxx
Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, and XXXXXXXXX XXXXX HOLDING, INC. (the
"Guarantor"), XXXXXXXXX XXXXX MERCHANDISING, INC., a California corporation (the
"Subsidiary Guarantor"), FLEET NATIONAL BANK, formerly known as BankBoston,
N.A., a national banking association ("Fleet"), and the other lending
institutions listed on Schedule 1 to the Credit Agreement referred to below
(together with Fleet, the "Banks"), and FLEET NATIONAL BANK, formerly known as
BankBoston, N.A., as agent for itself and such other lending institutions (the
"Agent").
WHEREAS, the Borrower, the Guarantor, the Banks, and the Agent are parties
to a Revolving Credit Agreement dated as of December 23, 1999 (as amended and in
effect from time to time, the "Credit Agreement," capitalized terms defined
therein having the same meanings herein as therein), pursuant to which the Banks
have extended credit to the Borrower on the terms and subject to the conditions
set forth therein;
WHEREAS, the Borrower and the Guarantor have requested that the Agent and
the Banks make certain amendments to the Credit Agreement;
WHEREAS, subject to the terms and conditions set forth herein, the
Borrower, the Guarantor, the Banks, and the Agent have agreed to amend the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree to amend the Credit Agreement as
follows:
1. AMENDMENT OF SECTION 9.4 OF THE CREDIT AGREEMENT. Section 9.4 of the
Credit Agreement is hereby amendEd by:
(a) deleting subsection (iii) in its entirety and substituting the
following new subsection (iii) in lieu thereof:
"(iii) so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, dividends and
distributions of up to $5,000,000 in any fiscal year of the
Guarantor and the Borrower, up to $2,500,000 of which may be cash
dividends paid on a non-cumulative basis";
(b) deleting the period (".") at the end of subsection (iii) thereof
and substituting in lieu thereof the text "; and"; and
(c) adding the following new subsection (iv):
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"(iv) so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, capital stock
redemptions of up to $12,000,000 in any fiscal year of the Guarantor
and the Borrower."
2. REPRESENTATIONS AND WARRANTIES. Each of the Borrower, the Guarantor and
the Subsidiary Guarantor hereby represents and warrants to the Agent and the
Banks as of the date hereof, and as of any date on which the conditions set
forth in Section 3 below are met, as follows:
(a) The execution and delivery by each of the Borrower, the Guarantor, and
the Subsidiary Guarantor of this Amendment and all other instruments and
agreements required to be executed and delivered by the Borrower, the Guarantor
and the Subsidiary Guarantor in connection with the transactions contemplated
hereby or referred to herein (collectively, the "Amendment Documents"), and the
performance by each of the Borrower, the Guarantor or the Subsidiary Guarantor
of any of its obligations and agreements under the Amendment Documents and the
Credit Agreement and the other Loan Documents, as amended hereby, are within the
corporate or other authority of each of the Borrower, the Guarantor and the
Subsidiary Guarantor, have been authorized by all necessary corporate
proceedings on behalf of each of the Borrower, the Guarantor and the Subsidiary
Guarantor, and do not and will not contravene any provision of law or the
Borrower's charter or the Guarantor's or the Subsidiary Guarantor's charters,
other incorporation or organizational papers, by-laws or any stock provision or
any amendment thereof or of any indenture, agreement, instrument or undertaking
binding upon any of the Borrower, the Guarantor or the Subsidiary Guarantor.
(b) Each of the Amendment Documents and the Credit Agreement and other
Loan Documents, as amended hereby, to which the Borrower, the Guarantor or the
Subsidiary Guarantor is a party constitute legal, valid and binding obligations
of such Person, 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) No approval or consent of, or filing with, any governmental agency or
authority is required to make valid and legally binding the execution, delivery
or performance by the Borrower, the Guarantor or the Subsidiary Guarantor of the
Amendment Documents or the Credit Agreement or other Loan Documents, as amended
hereby, or the consummation by the Borrower, the Guarantor or the Subsidiary
Guarantor of the transactions among the parties contemplated hereby and thereby
or referred to herein.
(d) The representations and warranties contained in Section 7 of the
Credit Agreement and in the other Loan Documents were true and correct as of the
date made. Except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents,
changes occurring in the ordinary course of business (which changes, either
singly or in the aggregate, have not been materially adverse) and to the extent
that such representations and warranties relate expressly to an earlier date and
after giving effect to the provisions hereof, such representations and
warranties, after giving effect to this Amendment, also are correct as of the
date hereof.
(e) Each of the Borrower, the Guarantor and the Subsidiary Guarantor has
performed and complied in all material respects with all terms and conditions
herein required to be performed or complied with by it prior to or at the time
hereof, and as of the date hereof, after giving effect to the provisions of this
Amendment and the other Amendment Documents, there exists no Event of Default or
Default.
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(f) Each of the Borrower, the Guarantor and the Subsidiary Guarantor
acknowledges and agrees that the representations and warranties contained in
this Amendment shall constitute representations and warranties referred to in
Section 13.1(e) of the Credit Agreement, a breach of which sHall constitute an
Event of Default.
3. EFFECTIVENESS. This Amendment shall become effective as of the date
first written above (the "Effective Date) upon the satisfaction of each of the
following conditions, in each case in a manner satisfactory in form and
substance to the Agent and the Banks:
(a) This Amendment shall have been duly executed and delivered by each of
the parties hereto and shall be in full force and effect;
(b) The Agent shall have received such other items, documents, agreements,
items or actions as the Agent may reasonably request in order to effectuate the
transactions contemplated hereby.
4. MISCELLANEOUS PROVISIONS.
(a) Each of the Borrower, the Guarantor and the Subsidiary Guarantor
hereby ratifies and confirms all of its Obligations to the Agent and the Banks
under the Credit Agreement, as amended hereby, and the other Loan Documents,
including, without limitation, the Loans, and each of the Borrower, the
Guarantor and the Subsidiary Guarantor hereby affirms its absolute and
unconditional promise to pay to the Banks and the Agent the Loans, reimbursement
obligations and all other amounts due or to become due and payable to the Banks
and the Agent under the Credit Agreement and the other Loan Documents, as
amended hereby. Except as expressly amended hereby, each of the Credit Agreement
and the other Loan Documents shall continue in full force and effect. This
Amendment and the Credit Agreement shall hereafter be read and construed
together as a single document, and all references in the Credit Agreement, any
other Loan Document or any agreement or instrument related to the Credit
Agreement shall hereafter refer to the Credit Agreement as amended by this
Amendment.
(b) Without limiting the expense reimbursement requirements set forth in
Section 16 of the CRedit Agreement, the Borrower agrees to pay on demand all
costs and expenses, including reasonable attorneys' fees, of the Agent incurred
in connection with this Amendment.
(c) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF
LAWS) AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
(d) This Amendment may be executed in any number of counterparts, and all
such counterparts shall together constitute but one instrument. In making proof
of this Amendment it shall not be necessary to produce or account for more than
one counterpart signed by each party hereto by and against which enforcement
hereof is sought.
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as a
sealed instrument as of the date first set forth above.
XXXXXXXXX XXXXX, INC.
By: /s/XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXXXXX XXXXX HOLDING, INC.
By: /s/XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
FLEET NATIONAL BANK, individually
and as Agent
By: /s/XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE
TO THE THIRD AMENDMENT
The undersigned hereby acknowledges the foregoing Third Amendment as of
the Effective Date and agrees that its obligations under the Guaranty will
extend to the Credit Agreement, as so amended, and the other Loan Documents.
XXXXXXXXX XXXXX MERCHANDISING, INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
