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EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
made as of the 29th day of May, 2001, among XXXX, INC. (the "Borrower"),
WACHOVIA BANK, N.A. (the "Bank") and the undersigned Guarantors.
Background:
The Borrower and the Bank have entered into a Credit Agreement
dated as of May 30, 2000 (the "Credit Agreement", which term shall include all
subsequent amendments, extensions and modifications thereto).
The Borrower and the Bank wish to amend the Credit Agreement
in certain respects as hereinafter provided.
The obligations of the Borrower under the Credit Agreement
were guaranteed by the Guarantors pursuant to Guaranty Agreements dated May 30,
2000. The Guarantors join herein to consent to the amendments contained herein.
NOW, THEREFORE, the Borrower and the Bank agree as follows:
SECTION 1. Definitions. Capitalized terms used herein which
are not otherwise defined herein shall have the respective meanings assigned to
them in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement.
SECTION 2.1 Amendment to Definition of Leverage Ratio. The
definition of the term "Leverage Ratio" set forth in Section 1.01 of the Credit
Agreement is hereby deleted in its entirety and the following definition
substituted therefor:
"LEVERAGE RATIO" MEANS AS TO ANY PERSON AS OF THE
LAST DAY OF ANY FISCAL QUARTER, THE RATIO OF (I) THE SUM OF FUNDED DEBT
AS OF SUCH DATE PLUS ALL OBLIGATIONS OF SUCH PERSON AS LESSEE UNDER
LEASES THAT ARE OR ARE REQUIRED TO BE, IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES, RECORDED AS CAPITAL LEASES AS OF SUCH
DATE TO (II) EBITDA FOR THE PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS
THEN ENDING.
SECTION 2.2 Amendment to Section 2.05. Section 2.05 of the
Credit Agreement is hereby amended by deleting the date "May 29, 2001" in the
first sentence of Section 2.05 and substituting therefor the date "May 28,
2002."
SECTION 2.3 Amendment to Section 2.07 (a). Section 2.07(a) of
the Credit Agreement is hereby amended by deleting such section in its entirety
and substituting therefor the following:
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(a) INTEREST RATE OPTIONS. SUBJECT TO THE PROVISIONS OF THIS
SECTION 2.07, AT THE ELECTION OF THE BORROWER, THE PRINCIPAL BALANCE OF
THE NOTE OR ANY PORTION THEREOF SHALL BEAR INTEREST PER ANNUM AT (I)
THE BASE RATE OR (II) THE LIBOR MARKET INDEX RATE PLUS THE APPLICABLE
MARGIN OR (III) UNDER THE CIRCUMSTANCES SPECIFIED IN SECTION 3.04 ONLY,
THE ALTERNATE RATE. THE BORROWER SHALL SELECT THE RATE OF INTEREST
APPLICABLE TO ANY LOAN AT THE TIME A NOTICE OF BORROWING IS GIVEN
PURSUANT TO SECTION 2.02 OR AT THE TIME A NOTICE OF
CONVERSION/CONTINUATION IS GIVEN PURSUANT TO SECTION 2.08. EACH LOAN OR
PORTION THEREOF BEARING INTEREST BASED ON THE BASE RATE SHALL BE A
"BASE RATE LOAN," EACH LOAN OR PORTION THEREOF BEARING INTEREST BASED
ON THE LIBOR MARKET INDEX RATE SHALL BE A "LIBOR RATE LOAN" AND EACH
LOAN OR PORTION THEREOF BEARING INTEREST BASED ON THE ALTERNATE RATE
SHALL BE AN "ALTERNATE RATE LOAN." ANY LOAN OR ANY PORTION THEREOF AS
TO WHICH THE BORROWER HAS NOT DULY SPECIFIED AN INTEREST RATE AS
PROVIDED HEREIN SHALL BE DEEMED A BASE RATE LOAN. THE BORROWER IS
DEEMED TO HAVE ELECTED THE LIBOR MARKET INDEX RATE PLUS THE APPLICABLE
MARGIN AS THE INTEREST RATE FOR ALL LOANS FUNDED PURSUANT TO SECTION
2.02(C).
SECTION 2.4. Addition to Section 2.07. Section 2.07 of the
Credit Agreement is hereby amended by adding the following new subsection (e):
(e) APPLICABLE MARGIN. "APPLICABLE MARGIN" MEANS:
(i) FOR THE PERIOD COMMENCING ON MAY 29,
2001 TO AND INCLUDING THE FIRST PERFORMANCE PRICING DETERMINATION DATE,
0.675%; AND
(ii) FROM AND AFTER THE FIRST PERFORMANCE
PRICING DETERMINATION DATE, FOR EACH LIBOR RATE LOAN, THE PERCENTAGE
DETERMINED ON EACH PERFORMANCE PRICING DETERMINATION DATE BY REFERENCE
TO THE TABLE SET FORTH BELOW AS TO THE LEVERAGE RATIO FOR THE QUARTERLY
OR ANNUAL PERIOD ENDING IMMEDIATELY PRIOR TO SUCH PERFORMANCE PRICING
DETERMINATION DATE.
LEVERAGE RATIO APPLICABLE MARGIN
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> 2.25 TO 1.0 0.75%
> 1.50 TO 1.0 BUT 0.675%
< 2.25 TO 1.0
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< 1.50 TO 1.0 0.60%
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IN DETERMINING INTEREST FOR PURPOSES OF THIS SECTION 2.07, THE BORROWER
AND THE BANK SHALL REFER TO THE BORROWER'S MOST RECENT CONSOLIDATED
QUARTERLY AND ANNUAL (AS THE CASE MAY BE) FINANCIAL STATEMENTS
DELIVERED PURSUANT TO SECTION 6.01(A) OR (B), AS THE CASE MAY BE. IF
SUCH FINANCIAL STATEMENTS REQUIRE A CHANGE IN INTEREST PURSUANT TO THIS
SECTION 2.07, THE BORROWER SHALL DELIVER TO THE BANK, ALONG WITH SUCH
FINANCIAL STATEMENTS, A NOTICE TO THAT EFFECT, WHICH NOTICE SHALL SET
FORTH IN
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REASONABLE DETAIL THE CALCULATIONS SUPPORTING THE REQUIRED CHANGE. THE
"PERFORMANCE PRICING DETERMINATION DATE" IS THE DATE WHICH IS 45 DAYS
AFTER THE END OF EACH FISCAL QUARTER. ANY SUCH REQUIRED CHANGE IN
INTEREST SHALL BECOME EFFECTIVE ON SUCH PERFORMANCE PRICING
DETERMINATION DATE, AND SHALL BE IN EFFECT UNTIL THE NEXT PERFORMANCE
PRICING DETERMINATION DATE, PROVIDED THAT: (I) CHANGES IN INTEREST
SHALL ONLY BE EFFECTIVE FOR INTEREST PERIODS COMMENCING ON OR AFTER THE
PERFORMANCE PRICING DETERMINATION DATE; AND (II) INTEREST SHALL NOT BE
DECREASED PURSUANT TO THIS SECTION 2.07 IF A DEFAULT IS IN EXISTENCE ON
THE PERFORMANCE PRICING DETERMINATION DATE.
SECTION 2.5. Addition of Section 2.11. The Credit Agreement is
hereby amended by adding the following new Section 2.11:
SECTION 2.11. FACILITY FEE. THE BORROWER SHALL PAY
TO THE BANK, A FACILITY FEE, CALCULATED ON THE AGGREGATE AMOUNT OF THE
COMMITMENT (WITHOUT TAKING INTO ACCOUNT THE AMOUNT OF THE OUTSTANDING
LOANS MADE BY BANK), AT THE RATE OF 0.125%, WHICH FACILITY FEE SHALL BE
EARNED AS OF MAY 29, 2001. SUCH FACILITY FEE SHALL BE PAYABLE IN
INSTALLMENTS ON MAY 29, 2001, SEPTEMBER 1, 2001, DECEMBER 1, 2001 AND
MARCH 1, 2002 IN EQUAL PAYMENTS OF $54,687.50; PROVIDED, HOWEVER, IN
THE EVENT THE BORROWER REFINANCES THE BANK'S COMMITMENT IN A
TRANSACTION NOT STRUCTURED AND/OR ARRANGED BY THE BANK, THE BORROWER
SHALL PAY TO THE BANK ANY UNPAID INSTALLMENTS OF THE FACILITY FEE ON
THE DATE THE COMMITMENT IS SO REFINANCED, AND, PROVIDED, FURTHER, IN
THE EVENT THE BANK ELECTS TO ACCELERATE THE OBLIGATIONS OF THE BORROWER
HEREUNDER UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, ANY UNPAID
BALANCE OF THE FACILITY FEE SHALL IMMEDIATELY BE DUE AND PAYABLE IN
FULL.
SECTION 2.6. Amendment of Section 6.11. The Credit Agreement
is hereby amended by modifying the parenthetical in the first sentence of
Section 6.11 to read as follows:
(EXCLUDING ANY SUBSIDIARY OPERATING AS AN INSURANCE OR BANKING ENTITY
AND EXCLUDING BELK GIFT COMPANY LLC SO LONG AS BELK GIFT COMPANY LLC
HAS AGGREGATE ASSETS NOT EXCEEDING $100,000 IN VALUE)
SECTION 2.7 Amendment of Section 6.27. Section 6.27 of the
Credit Agreement is amended by deleting the amount "$650,000,000" and
substituting therefor the amount "$735,250,000."
SECTION 3. Consent of Guarantors. Each of the Guarantors
hereby consents to the amendments set forth above.
SECTION 4. No Other Amendment. Except for the amendment set
forth above, the text of the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall be
construed together as a single instrument and any reference to the "Agreement"
or any other defined term for the Credit Agreement in the Credit
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Agreement, the Loan Documents or any certificate, instrument or other document
delivered pursuant thereto shall mean the Credit Agreement as amended hereby and
as it may be amended, supplemented or otherwise modified hereafter. Nothing
herein contained shall waive, annul, vary or affect any provision, condition,
covenant or agreement contained in the Credit Agreement, except as herein
amended, the Guaranty Agreements or any of the other Loan Documents nor affect
nor impair any rights, powers or remedies under the Credit Agreement, as hereby
amended, the Guaranty Agreements or any of the other Loan Documents. The Bank
does hereby reserve all of its rights and remedies against the Guarantors and
all other parties who may be or may hereafter become secondarily liable for the
repayment of the Notes. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Credit Agreement, as hereby amended, and the other Loan Documents, the Credit
Agreement, as amended, and the other Loan Documents being hereby ratified and
affirmed. The Borrower hereby expressly agrees that the Credit Agreement, as
amended, and the other Loan Documents are in full force and effect. The
Guarantors hereby promise and agree to perform all of the requirements,
conditions, agreements and obligations under the terms of the Guaranty
Agreements and the other Loan Documents to which any of them is a party, the
Guaranty Agreements and the other Loan Documents being hereby ratified and
affirmed. Each Guarantor hereby agrees that the Guaranty Agreements and other
Loan Documents to which it is a party are in full force and effect.
SECTION 5. Representations and Warranties. The Borrower and
each Guarantor hereby represents and warrants in favor of the Bank as follows:
(a) No Default or Event of Default under the Credit Agreement
has occurred and is continuing on the date hereof;
(b) The Borrower and each Guarantor has the corporate power
and authority to enter into this Amendment and to do all acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
(c) This Amendment has been duly authorized, validly executed
and delivered by one or more authorized officers of the Borrower and of the
Guarantors and each of this Amendment, and the Credit Agreement, as amended
hereby, constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms and the Guaranty Agreements
and other Loan Documents to which each Guarantor is a party constitute the
legal, valid and binding obligation of each Guarantor, enforceable against it in
accordance with its terms; and
(d) The execution and delivery of this Amendment and the
Borrower's performance hereunder and under the Credit Agreement as amended
hereby, and the execution and delivery of this Amendment by each Guarantor, do
not and will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over the Borrower or any
Guarantor other than those which have already been obtained or given, nor be in
contravention of or in conflict with the Articles of Incorporation or Bylaws or
Articles of Organization or Operating Agreement of the Borrower or any
Guarantor, or the provision of
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any statute, or any judgment, order or indenture, instrument, agreement or
undertaking, to which the Borrower is a party or by which its assets or
properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be deemed to be
made pursuant to the laws of the State of North Carolina with respect to
agreements made and to be performed wholly in the State of North Carolina and
shall be construed, interpreted, performed and enforced in accordance therewith.
SECTION 8. Effective Date. This Amendment shall be effective
as of the date first set forth above. The Borrower shall pay all out of pocket
fees and expenses of the Bank in connection with this Amendment including,
without limitation, the reasonable fees and expenses of counsel for the Bank.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
BORROWER:
Attest: XXXX, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
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Its: Asst. Secretary Its: Chairman
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[CORPORATE SEAL]
GUARANTORS:
XXXX-XXXXXXX COMPANY, GREENVILLE,
SOUTH CAROLINA
ATTEST:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
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Its: Asst. Secretary Its: Chairman
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[CORPORATE SEAL]
XXXX STORES SERVICES, INC.
ATTEST:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
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Its: Asst. Secretary Its: Chairman
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[CORPORATE SEAL]
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THE BELK CENTER, INC.
ATTEST:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
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Its: Asst. Secretary Its: Chairman
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[CORPORATE SEAL]
BELK ADMINISTRATION COMPANY
ATTEST:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
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Its: Asst. Secretary Its: Chairman
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[CORPORATE SEAL]
BELK INTERNATIONAL, INC.
ATTEST:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
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Its: Asst. Secretary Its: Chairman
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[CORPORATE SEAL]
UNITED ELECTRONIC SERVICES, INC.
ATTEST:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxx
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Its: Asst. Secretary Its: Chairman
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[CORPORATE SEAL]
XXXX STORES OF VIRGINIA LLC
By: /s/ Xxxx X. Xxxx
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Its: Chairman
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BELK ACCOUNTS RECEIVABLE LLC
By: /s/ Xxxx X. Xxxx
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Its: Chairman
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BANK:
WACHOVIA BANK, N.A.
By: /s/ Xxxx X. Xxxxxx, Xx.
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Its: Senior Vice President
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