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EXHIBIT 10.2
FOURTH AMENDMENT TO SYNDICATED CREDIT AGREEMENT
AND WAIVER
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
September 22, 1999, is entered into by and among XXXXXXXX-SONOMA, INC. (the
"Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for
itself and the Banks (the "Agent"), and the several financial institutions party
to the Credit Agreement (collectively, the "Banks").
RECITALS
A. The Company, Banks, and Agent are parties to a Credit Agreement dated as
of June 1, 1997 (as previously amended, the "Credit Agreement") pursuant to
which the Agent and the Banks have extended certain credit facilities to the
Company.
B. The L/C Agreement (as defined in the Credit Agreement) is being amended
to add a facility for up to $50,000,000 in cash advances by BofA to the Company.
C. The Company has made an investment in Della & Xxxxx in the approximate
amount of $2,000,000, as has been disclosed to the Banks in writing.
D. The Banks are willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) A new subsection (i) is added to Section 7.05 ("Limitation on
Indebtedness") as follow:
(i) Additional Indebtedness to BofA (or another replacement
lender) in a principal amount not to exceed Fifty Million Dollars
($50,000,000) outstanding at any one time;
(b) All references to the L/C Agreement in the Credit Agreement shall
be deemed to refer to the L/C Agreement as amended as described in Recital B
above. In particular, the pro rata sharing provisions in paragraph 2.15(d) shall
be deemed to apply to all credit outstanding under the L/C Agreement, as
amended.
3. Waiver. The Banks hereby waive any violation of section 7.04 of the
Credit Agreement arising from the investment in Della & Xxxxx, as described in
the Recitals. This waiver shall not be deemed to cover any other or any future
violations of the Credit Agreement by the Borrower.
4. Representations and Warranties. The Company hereby represents and
warrants to the Agent and the Bank as follows:
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(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms, without
defense, counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct.
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Banks or any other Person.
5. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Bank or
the Company shall bind such Bank or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 10.01 of the Credit
Agreement.
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(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent, upon
demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
XXXXXXXX-SONOMA, INC
By /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx By /s/ XXXXX X. X. XXXXXXX
Vice President -------------------------------
Title V.P. Finance Asst Secretary
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By /s/ XXXX X. XXXX
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Title CFO
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank THE BANK OF NEW YORK
By /s/ XXXXX XXXXXX By
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Xxxxx Xxxxxx
Senior Vice President Title
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(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent, upon
demand for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent XXXXXXXX-SONOMA, INC.
By By
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Xxxxxxx X. Xxxxxxx
Vice President Title
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By
--------------------------------
Title
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank THE BANK OF NEW YORK
By By /s/ Xxxxxxxxx San
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Xxxxx Xxxxxx
Vice President Title V.P.
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GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, each a guarantor with respect to the Company's
obligations under the Credit Agreement, each hereby (i) acknowledge and consent
to the execution, delivery and performance by the Company of the foregoing
Fourth Amendment to Syndicated Credit Agreement, and (ii) reaffirm and agree
that the guaranty to which the undersigned is a party is in full force and
effect, and guaranties all of the obligations of the Company under the
Agreement, as amended.
Dated as of September 22, 1999 XXXXXXXX-SONOMA STORES, INC.
By: /s/ XXXXX X. X. XXXXXXX
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Xxxxx X. X. Xxxxxxx
Assistant Secretary
HOLD EVERYTHING, INC.
By: /s/ XXXXX X. X. XXXXXXX
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Xxxxx X. X. Xxxxxxx
Assistant Secretary
XXXXXXXX CATALOG
COMPANY, INC.
By: /s/ XXXXX X. X. XXXXXXX
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Xxxxx X. X. Xxxxxxx
Assistant Secretary
POTTERY BARN EAST, INC.
By: /s/ XXXXX X. X. XXXXXXX
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Xxxxx X. X. Xxxxxxx
Assistant Secretary
XXXXXXXX-SONOMA STORES, LLC
By Xxxxxxxx-Sonoma, Inc., its sole
member
By: /s/ XXXXX X. X. XXXXXXX
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Xxxxx X. X. Xxxxxxx, its President
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