FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.4
FOURTH AMENDMENT
THIS
FOURTH AMENDMENT TO CREDIT AGREEMENT (the
“Amendment”), dated as of May 13, 2005,
effective January 29, 2005, is made by and among Too, Inc., a Delaware corporation (the
“Borrower”), each of the Guarantors (as defined in the Credit Agreement defined below), the Lenders
(as defined in the Credit Agreement defined below), National City Bank, in its capacity as sole
lead arranger and administrative agent for the Lenders under the Credit Agreement (the “Agent”),
Fifth Third Bank, as co-syndication agent, LaSalle Bank National Association, as co-syndication
agent, Bank of America, N.A., as co-documentation agent, and The Huntington National Bank, as
co-documentation agent.
BACKGROUND
The parties hereto are parties to that Credit Agreement, dated as of April 29, 2003 (as
amended to the date hereof, the “Credit Agreement”), and desire to amend various terms thereof as
set forth herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth and incorporating the above-defined terms herein and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Defined Terms; References. Terms not otherwise defined in this Amendment shall have the
respective meanings ascribed to them in the Credit Agreement. Each reference to “hereof,”
“hereunder,” “herein,” and similar references contained in the Credit Agreement, and each reference
to “this Agreement” and similar references contained in the Credit Agreement, shall refer to the
Credit Agreement as and to the extent amended hereby.
2. Amendment of Credit Agreement.
(a) Definitions. Effective as of the date hereof, the definition of “Cash Equivalent”
is hereby inserted in alphabetical order at Section 1.01 of the Credit Agreement as follows:
Cash Equivalent shall mean :
(i) securities with maturities of 18 months or less from the date of
acquisition issued or fully guaranteed or insured by the United States Government or
any agency thereof;
(ii) certificates of deposit and time deposits with maturities of 18 months or
less from the date of acquisition and overnight bank deposits of any Lender or of
any commercial bank having capital and surplus in excess of $500,000,000;
(iii) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (ii) of this definition with respect to securities issued
or fully guaranteed or insured by the United States Government;
(iv) commercial paper of a domestic issuer rated at least A-2 by Standard &
Poor’s or P-2 by Moody’s, or carrying an equivalent rating by a nationally
recognized rating agency if both of Standard & Poor’s and Moody’s cease publishing
ratings of investments;
(v) securities with maturities of 18 months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory of
the United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by Standard & Poor’s or
A by Moody’s;
(vi) securities with maturities of 18 months or less from the date of
acquisition backed by standby letters of credit issued by any Bank or any commercial
bank satisfying the requirements of clause (ii) of this definition;
(vii) corporate obligations such as notes, bonds, loan participation
certificates, master notes, and variable rate demand notes rated at least A by
Standard & Poor’s or A2 by Moody’s;
(viii) asset backed and mortgage backed securities and collateralized mortgage
obligations rated AAA by Standard & Poor’s or Aaa by Moody’s;
(ix) money market auction rate preferred securities and auction rate notes with
auctions scheduled no less frequently than every 49 days; and
(x) shares of money market mutual or similar funds which invest principally in
assets satisfying the requirements of clauses (i) through (ix) of this definition.
(b) Dividends and Restricted Payments. Effective as of the date hereof, Section
7.02(i) of the Credit Agreement is hereby amended and restated in its entirety as follows:
(i) Dividends and Restricted Payments. Each of the Loan Parties shall not, and
shall not permit any of its Subsidiaries to, make or pay, or agree to become or
remain liable to make or pay, any dividend or other distribution of any nature
(whether in cash, property, securities or otherwise) on account of or in respect of
its shares of capital stock, partnership interests or limited liability company
interests or on account of the purchase, redemption, retirement or acquisition of
its shares of capital stock (or warrants, options or rights therefor), partnership
interests or limited liability company interests, except
(i) dividends or other distributions payable to another Loan Party,
(ii) dividends on or redemptions or repurchases of its shares of
capital stock (or warrants, options or rights therefor), partnership
interests or limited liability company interests the aggregate amount of
which does not exceed in any fiscal year of Borrower fifty percent (50%) of
the reported fiscal
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year consolidated net earnings of Borrower and its Subsidiaries for
such fiscal year ; provided, however, that the Loan Parties shall be
permitted to make dividends on and redemptions or repurchases of its shares
of capital stock (or warrants, options or rights therefor), partnership
interests or limited liability company interests in an unlimited amount if
for at least ninety (90) days prior to each such dividend, redemption, and
repurchase, and after giving effect thereto, (A) Borrower shall have at
least $75,000,000 of unencumbered cash or Cash Equivalent showing on its
consolidated balance sheet, and (B) no Revolving Facility Usage (other than
by way of Letters of Credit utilized in the ordinary course of the business
of the Loan Parties) shall have occurred.
3. Representations and Warranties. Each of the Loan Parties hereby represents and warrants to the
Lenders, after giving effect to this Amendment, as follows:
(a) Authorization. The execution and delivery by the Loan Parties of this Amendment,
the consummation by the Loan Parties of the transactions contemplated by the Credit Agreement as
amended hereby, and the performance by each Loan Party of its respective obligations under the
Credit Agreement as amended hereby have been duly authorized by all necessary corporate or similar
applicable proceedings on the part of each Loan Party. On the date of each Loan Party’s execution
hereof, there are no set-offs, claims, defenses, counterclaims, causes of action, or deductions of
any nature against any of the Obligations;
(b) Valid and Binding. This Amendment has been duly and validly executed and
delivered by each Loan Party and constitutes, and the Credit Agreement as amended hereby
constitutes, the legal, valid and binding obligations of each Loan Party enforceable in accordance
with the terms hereof and thereof, except as the enforceability of this Amendment or the Credit
Agreement as amended hereby may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors’ rights or by general principles of
equity limiting the availability of equitable remedies;
(c) No Conflicts. Neither the execution and delivery of this Amendment nor the
consummation of the transactions contemplated by this Amendment or by the Credit Agreement as
amended hereby nor compliance with the terms and provisions of this Amendment or of the Credit
Agreement as amended hereby, by any of the Loan Parties, will (a) violate any Law, (b) conflict
with or result in a breach of or a default under the articles or certificate of incorporation or
bylaws or similar organizational documents of any Loan Party or any material agreement or
instrument to which any Loan Party is a party or by which any Loan Party or any of their respective
properties (now owned or hereafter acquired) may be subject or bound, (c) require any consent or
approval of any Person or require a mandatory prepayment or any other payment under the terms of
any material agreement or instrument to which any Loan Party is a party or by which any Loan Party
or any of their respective properties (now owned or hereafter acquired) may be subject or bound,
(d) result in the creation or imposition of any Lien upon any property (now owned or hereafter
acquired) of any Loan Party, or (e) require any authorization, consent, approval, license, permit,
exemption or other action by, or any registration, qualification, designation, declaration or
filing with, any Official Body; and
(d) No Defaults. After giving effect to the amendments made herein: (i) no Event of
Default under and as defined in the Credit Agreement has occurred and is continuing, and (ii) the
representations and warranties of each of Borrower and the other Loan Parties contained in the
Credit Agreement and the
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other Loan Documents are true and correct on and as of the date hereof with the same force and
effect as though made on such date, except to the extent that any such representation or warranty
expressly relates solely to a previous date.
4. Effectiveness of Amendment.
(a) This Amendment shall become effective as of January 29, 2005, upon receipt by the Agent,
from each of the Loan Parties and from the Required Lenders, of a counterpart hereof signed by such
party or facsimile or other written confirmation (in form satisfactory to Agent) that such party
has signed a counterpart hereof.
(b) Upon the effectiveness hereof, the Credit Agreement shall be amended hereby in accordance
with the terms hereof, and this Amendment and the Credit Agreement shall hereafter be one agreement
and any reference to the Credit Agreement in any document, instrument, or agreement shall hereafter
mean and include the Credit Agreement as amended hereby. In the event of irreconcilable
inconsistency between the terms or provisions hereof and the terms or provisions of the Credit
Agreement, the terms and provisions hereof shall control. Except as specifically amended by the
provisions hereof, the Credit Agreement and all other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed by the parties hereto. Each Lender, by its execution
hereof, hereby consents to this Amendment pursuant to the Credit Agreement.
5. Joinder of Guarantors. Each of the Guarantors hereby joins in this Amendment to evidence its
consent hereto, and each Guarantor hereby reaffirms its obligations set forth in the Credit
Agreement, as hereby amended, and in each Guaranty Agreement and each other Loan Document given by
it in connection therewith..
6. Governing Law. This Amendment shall be deemed to be a contract under the laws of the State of
Ohio and for all purposes shall be governed by and construed and enforced in accordance with the
internal laws of the State of Ohio without regard to its conflict of laws principles.
7. Counterparts; Telecopy. This Amendment may be signed in any number of counterparts each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of executed signature pages by facsimile or other electronic transmission will
constitute effective and binding execution and delivery.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 8 TO FOURTH AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused
this Amendment to be executed and delivered as of the day and year first above written.
| BORROWER: | ||||||
| TOO, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxx Title: Chairman, President and CEO |
||||||
| GUARANTORS: | ||||||
| AMERICAN FACTORING, INC. | ||||||
| By: | /s/ Xxxxxxx X. May | |||||
| Name: Xxxxxxx X. May Title: President |
||||||
| FLORET, LLC | ||||||
| By: | /s/ Xxxxxxx XxXxxxxx | |||||
| Name: Xxxxxxx XxXxxxxx Title: President |
||||||
| JUSTICE STORES, LLC | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxx Title: Chief Executive Officer |
||||||
| LT HOLDING, INC. | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: Xxxxxx Xxxxxxxx Title: President and CEO |
||||||
[SIGNATURE PAGE 2 OF 8 TO FOURTH AMENDMENT]
| LT IMPORT CORP. | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: Xxxxxx Xxxxxxxxx Title: President and CEO |
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| LIMITED TOO CATALOG PRODUCTION, INC. | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx Title: President and CEO |
||||
| LIMITED TOO CREATIVE DESIGN, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxxx Title: Secretary |
||||
| LIMITED TOO DIRECT, LLC | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxxx Title: Secretary |
||||
| LIMITED TOO PURCHASING, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxxx Title: Secretary |
||||
| LIMITED TOO STORE PLANNING, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxxx Title: Secretary |
||||
[SIGNATURE PAGE 3 OF 8 TO FOURTH AMENDMENT]
| MISH MASH, LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: Xxxxxxx X. Xxxxxx Title: President and CEO |
||||
| TOO GC, LLC | ||||
| By: | /s/ Xxxxxxx X. May | |||
| Name: Xxxxxxx X. May Title: President, Treasurer and Secretary |
||||
| TOO BRANDS, INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: Xxxxxxx X. Xxxxxx Title: President and CEO |
||||
| TOO BRANDS INVESTMENT, LLC | ||||
| By: | /s/ Xxxxxxx X. May | |||
| Name: Xxxxxxx X. May Title: President, CEO and Treasurer |
||||
| TOO IMPORT, LLP | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: Xxxxxx Xxxxxxxxx Title: President and CEO |
||||
[SIGNATURE PAGE 4 OF 8 TO FOURTH AMENDMENT]
| NATIONAL CITY BANK, individually and as Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: Xxxxx X. Xxxxxxx Title: Senior Vice President |
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[SIGNATURE PAGE 5 OF 8 TO FOURTH AMENDMENT]
| FIFTH THIRD BANK | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxx | |||
| Name: Xxxxxxxxxxx X. Xxxxx Title: Vice President |
||||
[SIGNATURE PAGE 6 OF 8 TO FOURTH AMENDMENT]
| LASALLE BANK NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: Xxxxxx X. Xxxxx Title: Senior Vice President |
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[SIGNATURE PAGE 7 OF 8 TO FOURTH AMENDMENT]
| BANK OF AMERICA, N.A. | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: Xxxxx Xxxxx Title: Vice President |
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[SIGNATURE PAGE 8 OF 8 TO THIRD AMENDMENT]
| THE HUNTINGTON NATIONAL BANK | ||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: Xxxx X. Xxxxxxxx Title: Vice President |
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