(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT 10.60
FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
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THIS FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
"Amendment") is made and entered into as of the 16th day of December,
2002, by and among CPI CORP., a Delaware corporation (the "Borrower"),
U.S. BANK NATIONAL ASSOCIATION (which was formerly known as Firstar
Bank, N.A., which is the successor by merger to Firstar Bank Missouri,
National Association) and COMMERCE BANK, NATIONAL ASSOCIATION
(collectively, the "Banks") and U.S. BANK NATIONAL ASSOCIATION
(which was formerly known as Firstar Bank, N.A., which is the successor
by merger to Firstar Bank Missouri, National Association), as agent
for the Banks (in such capacity, the "Agent").
WITNESSETH:
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WHEREAS, Borrower, the Banks and the Agent are parties to that
certain Revolving Credit Agreement dated as of June 27, 2000, as
amended by that certain First Amendment to Revolving Credit Agreement
dated as of July 20, 2001, that certain Second Amendment to Revolving
Credit Agreement dated as of November 8, 2001, and that certain Third
Amendment to Revolving Credit Agreement dated as of January 16, 2002,
and that certain Fourth Amendment to Revolving Credit Agreement dated
as of April 4, 2002 (as so amended, the "Revolving Credit Agreement";
all capitalized terms used and not otherwise defined in this Amendment
shall have the respective meanings ascribed to them in the Revolving
Credit Agreement as amended by this Amendment); and
WHEREAS, Borrower, the Banks and the Agent desire to amend the
Revolving Credit Agreement in the manner 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 1.01 of
the Revolving 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 2.09 and subject to any assignment of the
Commitments by any Bank: with respect to U.S. Bank National
Association, $10,000,000.00; and with respect to Commerce Bank,
National Association, $5,000,000.00."
2. The definition of "Consolidated EBITDA" set forth in
Section 1.01 of the Revolving Credit Agreement is hereby
deleted in its entirety and the following substituted in
lieu thereof:
"CONSOLIDATED EBITDA shall mean, for the period in question,
the sum of (a) Consolidated Net Income during such period PLUS (b)
to the extent deducted in determining such Consolidated Net Income
(but without duplication), the sum of (i) Consolidated Interest
Expense during such period, PLUS (ii) all provisions for any Federal,
state, local and/or foreign income taxes made by Borrower and its
Subsidiaries during such period (whether paid or deferred), PLUS
(iii) all depreciation, amortization and other non-cash expenses of
Borrower and its Subsidiaries during such period, PLUS (iv) any
extraordinary losses during such period PLUS (v) any losses from
the sale or other disposition of Property other than in the
ordinary course of business during such period (excluding,
however, any losses incurred during such period as a result of
the write-down of any assets of Prints Plus) PLUS (vi) any
losses incurred during such period for or in connection with
litigation and/or transaction costs related to the failed merger
between Borrower and American Securities Capital Partners
(provided, however, that the
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maximum amount of such losses which Borrower may add back
for purposes of this definition of EBITDA shall not exceed
$10,000,000.00 in the aggregate for all periods) MINUS (c) to
the extent added in determining such Consolidated Net Income
(but without duplication), the sum of (i) any extraordinary gains
during such period PLUS (ii) any gains from the sale or other
disposition of Property other than in the ordinary course of
business during such period, all determined on a consolidated
basis and in accordance with GAAP."
3. The definition of "Consolidated Net Worth" set forth
in Section 1.01 of the Revolving Credit Agreement is hereby
deleted in its entirety and the following substituted in lieu
thereof:
"CONSOLIDATED NET WORTH shall mean, as of the date of any
determination thereof, the amount of the capital stock accounts
(net of treasury stock, at cost) of Borrower and its Subsidiaries
as of such date PLUS (or MINUS in the case of a deficit) the
surplus and retained earnings of Borrower and its Subsidiaries
as of such date, all determined on a consolidated basis and in
accordance with GAAP; provided, however, that Consolidated Net
Worth shall be determined without regard to any accounting entries
required to be made under FAS 87 in respect of non-cash pension
charges which do not run through the Borrower's income statement."
4. The following new definition of "FAS 87" is hereby added
to Section 1.01 of the Revolving Credit Agreement in proper
alphabetical order:
"FAS 87 shall mean U.S. Financial Accounting Standard
Number 87 entitled "Employers' Accounting for Pensions."
5. Section 2.09 of the Revolving Credit Agreement is
hereby deleted in its entirety and the following substituted
in lieu thereof:
"2.09 Termination or Reduction of Commitments.
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(a) The Commitments will be automatically and permanently
reduced on the date of each stock redemption consummated by
Borrower on or after December 16th, 2002, by an amount equal
to the total consideration paid by Borrower to effect such stock
redemption. Each such reduction shall be allocated on a pro rata
basis among the Banks based on their respective Pro Rata Shares.
(b) Borrower may, upon three (3) Domestic Business Days'
prior written notice to the Agent, terminate entirely at any
time, or proportionately reduce from time to time on a pro rata
basis among the Banks based on their respective Pro Rata Shares
by an aggregate amount of $5,000,000.00 or any larger multiple of
$1,000,000.00 the unused portions of the Commitments; provided,
however, that (i) at no time shall the Commitments be reduced to
a figure less than the Total Outstandings, (ii) at no time shall
the Commitments be reduced to a figure greater than zero but less
than $5,000,000.00 and (iii) any such termination or reduction
shall be permanent and Borrower shall have no right to thereafter
reinstate or increase, as the case may be, the Commitment of any Bank.
(c) If the aggregate amount of the Commitments on any date
is less than the Total Outstandings on such date, whether as a
result of Section 2.09(a) above, Borrower's election to decrease
the amount of Commitments pursuant to Section 2.09(b) above or
otherwise, Borrower shall be automatically required (without
demand or notice of any kind by the Agent or any Bank, all of
which are hereby expressly waived by Borrower) to immediately
repay the
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Loans and/or surrender for cancellation the outstanding
Letters of Credit, in either case in an amount sufficient
to reduce the amount of the Total Outstandings to an amount
equal to or less than the aggregate amount of the Commitments."
6. Section 5.01(o)(i) of the Revolving Credit Agreement
is hereby deleted in its entirety and the following substituted
in lieu thereof:
"(i) MINIMUM CONSOLIDATED EBITDA. Borrower will have a
Consolidated EBITDA of at least (A) $31,000,000.00 during
the four (4) consecutive fiscal quarter period of Borrower
ended November 9, 2002, and (B) $39,000,000.00 during each
four (4) consecutive fiscal quarter period of Borrower
ending after November 9, 2002."
7. Section 5.02(j) of the Revolving Credit Agreement
is hereby deleted in its entirety and the following substituted
in lieu thereof:
"(j) STOCK REDEMPTIONS AND DISTRIBUTIONS. Borrower will
not declare or incur any liability to make any Distribution in
respect of the capital stock of Borrower; provided, however,
that so long as (i) no Default or Event of Default has occurred
and is continuing or would be created by or result from the
payment of such dividends and/or from the consummation of such
stock redemptions and (ii) after giving effect thereto Borrower
is in compliance with the requirements of Section 2.09(c),
Borrower shall be permitted to declare and pay cash dividends
on its capital stock and to redeem shares of its capital stock
for cash. Borrower hereby agrees to give the Agent and each
Bank immediately written notice of each stock redemption
consummated by Borrower, including the total consideration
paid by Borrower to consummate such stock redemption."
8. The references in paragraph 4 of the First Amendment
to Sections 5.02(o)(i) and 5.02(o)(ii) are hereby corrected to
read Sections 5.01(o)(i) and 5.01(o)(ii). The reference in
paragraph 5 of the First Amendment to Section 5.02(o)(iv) is
hereby corrected to read Section 5.01(o)(iv) The reference in
paragraph 2 of the Second Amendment to Section 5.02(o)(i) is
hereby corrected to read Section 5.01(o)(i). The reference in
paragraph 1 of the Fourth Amendment to Section 5.02(o)(i) is
hereby corrected to read Section 5.01(o)(i).
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 and any and all other agreements,
documents, instruments and/or certificates relating to the
amendment of Borrower's existing credit facilities with the
Agent and the Banks (collectively, the "Loan Documents").
Borrower further agrees to pay or reimburse the Agent and
the Banks for (a) any stamp or other taxes (excluding income
or gross receipts taxes) which may be payable with respect to
the execution, delivery, filing and/or recording of any of the
Loan Documents and (b) the cost of any filings and searches,
including, without limitation, Uniform Commercial Code filings
and searches. All of the obligations of Borrower under this
paragraph shall survive the payment of the Borrower's Obligations
and the termination of the Revolving Credit Agreement.
10. All references in the Revolving Credit Agreement to
"this Agreement" and any other references of similar import
shall henceforth mean the Revolving Credit Agreement as
amended by this Amendment.
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11. Except to the extent specifically amended by this
Amendment, all of the terms, provisions, conditions, covenants,
representations and warranties contained in the Revolving
Credit Agreement shall be and remain in full force and effect
and the same are hereby ratified and confirmed.
12. This Amendment shall be binding upon and inure to
the benefit of Borrower, the Banks and the Agent and their
respective successors and assigns, except that Borrower may
not assign, transfer or delegate any of its rights or
obligations under the Revolving Credit Agreement as amended
by this Amendment.
13. Borrower hereby represents and warrants to the
Agent and each of 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 or approval of or filing or recording with, any
governmental or regulatory body, instrumentality,
authority, 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 body, instrumentality, authority, agency or
official or any agreement, document or instrument to which
Borrower is a party or by which Borrower or any of its
Property or assets is bound or to which Borrower or any
of its Property or assets is subject;
(c) this Amendment has been duly executed and delivered
by Borrower and constitutes the legal, valid and binding
obligation of Borrower enforceable against Borrower in
accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency
or similar laws affecting the enforcement of creditors'
rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(d) all of the representations and warranties made
by Borrower and/or any other Obligor in the Revolving
Credit Agreement and/or in any other Transaction Document are
true and correct in all material respects on and as of
the date of this Amendment as if made on and as of the
date of this Amendment; and
(e) as of the date of this Amendment and after
giving effect to this Amendment, no Default or Event of
Default under or within the meaning of the Revolving
Credit Agreement has occurred and is continuing.
14. In the event of any inconsistency or conflict
between this Amendment and the Revolving Credit Agreement,
the terms, provisions and conditions contained in this
Amendment shall govern and control.
15. 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).
16. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF
A DEBT, INCLUDING PROMISES TO
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EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO
PROTECT BORROWER, THE BANKS AND THE AGENT FROM M
ISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
REACHED BY BORROWER, THE BANKS AND THE AGENT COVERING
SUCH MATTERS ARE CONTAINED IN THE REVOLVING CREDIT
AGREEMENT AS AMENDED BY THIS AMENDMENT AND THE OTHER
TRANSACTION DOCUMENTS, WHICH REVOLVING 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.
17. 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.
18. Notwithstanding any provision contained in
this Amendment to the contrary, this Amendment shall
not be effective unless and until the Agent shall have
received:
(a) this Amendment, duly executed by Borrower
and each of the Banks;
(b) a copy of resolutions of the Board of Directors
of Borrower, duly adopted, which authorize the execution,
delivery and performance of this Amendment;
(c) 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
(d) certificates of corporate good standing of
Borrower issued by the Secretaries of States of the
States of Delaware and Missouri.
IN WITNESS WHEREOF, Borrower, the Banks and the
Agent have executed this Fifth Amendment to Revolving
Credit Agreement as of the 16th day of December, 2002.
CPI CORP.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Title: V.P./Treasurer
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
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COMMERCE BANK, NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxxx
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Xxx Xxxxxx
Title: Assistant Vice President
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U.S. BANK NATIONAL ASSOCIATION, as Agent
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
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