WAIVER AND AMENDMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This WAIVER AND AMENDMENT NO. 2 to AMENDED AND RESTATED CREDIT
AGREEMENT ("Waiver") is made as of June 8, 1999 by and among Xxxxxxxxx Xxxxx
Corporation (the "Borrower"), the financial institutions (the "Lenders")
party to the "Credit Agreement" (defined below), and The First National Bank
of Chicago, as Agent. Defined terms used herein and not otherwise defined
herein shall have the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Amended and Restated Credit Agreement, dated as of July 2, 1997, as
amended;
WHEREAS, the Borrower proposes to issue additional Senior Notes in an
aggregate principal amount of $40,000,000 under the Senior Note Indenture
(the "Issuance"), and the Borrower has requested that the Lenders and the
Agent provide a limited waiver under the Credit Agreement to permit such
Issuance;
WHEREAS, the Lenders and the Agent are willing to provide such a limited
waiver on the terms and conditions set forth herein;
WHEREAS, the Borrower also wishes to amend the Credit Agreement in
certain respects;
WHEREAS, the Lenders and the Agent are willing to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Borrower, the Agent and the Lenders have entered into this Waiver.
1. LIMITED WAIVER. Effective as of the date hereof, as expressly
limited hereby and subject to the satisfaction of the condition precedent set
forth in SECTION 3 below, the Lenders and the Agent hereby (x) consent to the
Issuance and (y) agree to waive the requirements of Section 6.2(C) of the
Credit Agreement with respect to Xxxxxxxxx Xxxxx (Canada) Corporation until
the earlier of (x) June 25, 1999 and (y) the
effective date of a credit agreement between First Chicago NBD Bank, Canada
and Xxxxxxxxx Xxxxx (Canada) Corporation.
2. AMENDMENT. Effective as of the date first above written and subject
to the satisfaction of the condition precedent set forth in SECTION 3 below,
the Credit Agreement shall be and hereby is amended as follows:
(A) SECTION 1.1 of the Credit Agreement is hereby amended as
follows:
(i) The definition of "SENIOR NOTES" is hereby amended in
its entirety as follows:
"SENIOR NOTES" means those certain notes issued
pursuant to the Senior Note Indenture in the aggregate
principal amount of $170,000,000 with a maturity of
July 1, 2004.
(ii) The definition of "SENIOR NOTE INDENTURE" is hereby
amended in its entirety as follows:
"SENIOR NOTE INDENTURE" means that certain Indenture,
dated on or about July 2, 1997, as amended by that
certain First Supplemental Indenture, dated as of
December 7, 1998, and by that certain Second
Supplemental Indenture, dated as of June 8, 1999, by
and among the Borrower, the Sweet Factory
Subsidiaries, Xxxxxxxxx Xxxxx (Canada) Corporation and
The Bank of New York, as Trustee, pursuant to which
the Senior Notes are to be or have been issued.
(B) The second sentence of SECTION 5.8 is hereby deleted
therefrom and the following sentence is substituted therefor:
"Except as disclosed to the Lenders on or prior to the Closing
Date, and except for a single existing Stock Option Plan under
which certain officers of the Borrower may receive, in the
aggregate, no more than thirty-four share of stock in the Parent,
none of the issued and outstanding capital stock of the Parent,
the Borrower or any of their respective Subsidiaries is subject
to any vesting, redemption, or repurchase agreement (other than
the SAR Agreements), and there are no warrants or options
outstanding with respect to such capital stock."
(C) Paragraph (D) of SECTION 6.4 is hereby amended to delete
therefrom the number "$25,000,000.00" and to substitute therefor the
number "$35,000,000.00".
3. CONDITIONS OF EFFECTIVENESS. This Waiver shall become effective
and be deemed effective as of the date hereof, if, and only if, the Agent
shall have received four (4) duly executed originals of this Waiver from the
Borrower and the Lenders.
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4. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The Borrower
hereby represents and warrant as follows:
(a) The Credit Agreement as previously executed constitutes the
legal, valid and binding obligation of the Borrower and is enforceable
against the Borrower in accordance with its terms.
(b) Upon the effectiveness of this Waiver, the Borrower hereby
(i) represents that no Default or Unmatured Default exists, (ii) reaffirms
all covenants, representations and warranties made in the Credit Agreement,
and (iii) agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this Waiver.
5. EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of SECTION 1 hereof, on and after the
date hereof, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement, as amended previously and as amended and
waived hereby.
(b) Except as specifically amended and waived above, the Credit
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect, and
are hereby ratified and confirmed. Without limiting the foregoing, nothing in
this Waiver shall constitute a waiver or amendment of any provision of
SECTION 6.4 of the Credit Agreement.
(c) The execution, delivery and effectiveness of this Waiver
shall neither, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Lenders or the Agent, nor constitute a
waiver of any provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection therewith.
6. COSTS AND EXPENSES. The Borrower agrees to pay all reasonable
costs, fees and out-of-pocket expenses (including attorneys' fees and
expenses charged to the Agent) incurred by the Agent and the Lenders in
connection with the preparation, arrangement, execution and enforcement of
this Waiver.
7. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
8. HEADINGS. Section headings in this Waiver are included herein for
convenience of reference only and shall not constitute a part of this Waiver
for any other purpose.
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9. COUNTERPARTS. This Waiver may be executed by one or more of the
parties to the Waiver on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
10. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Waiver. In the event an
ambiguity or question of intent or interpretation arises, this Waiver shall
be construed as if drafted jointly by the parties hereto and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Waiver.
The remainder of this page remains intentionally blank.
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IN WITNESS WHEREOF, this Waiver has been duly executed as of the day and
year first above written.
XXXXXXXXX XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President - Finance and
Accounting
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET BUSINESS CREDIT CORPORATION,
formerly known as Sanwa Business
Credit Corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
Signature Page to Waiver to
to Amended and Restated Credit Agreement
