WAIVER AND THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS WAIVER AND THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment"), dated as of May 15, 2003 (the "Amendment Date"), is among
Xxxxxxxx'x, Inc., a Delaware corporation, each of its Subsidiaries party hereto,
Bank of America, N.A. (in its capacity as administrative agent for the Lenders),
and each of the lending institutions party hereto.
RECITALS:
A. The Credit Parties, the Lenders, and the Agent have entered into that
certain Amended and Restated Credit Agreement dated as of August 28, 2002 (as
amended, the "Credit Agreement") pursuant to which the Lenders have provided
certain credit facilities to the Borrowers.
B. The Credit Parties have requested that the Lenders amend certain
provisions of the Credit Agreement and waive certain Events of Default under the
Credit Agreement as provided hereinbelow.
C. Subject to satisfaction of the conditions set forth herein, the Lenders
are willing to amend the Credit Agreement and provide the requested waiver of
Events of Default as specifically provided herein.
NOW, THEREFORE, BE IT RESOLVED, THAT, in consideration of the premises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the same meanings as in the
Credit Agreement, as amended hereby.
ARTICLE 2
Waiver of Events of Default
Section 2.1 Waiver of Events of Default. The Credit Parties have failed to
deliver (a) on or before December 26, 2002, the terminations, releases, and UCC
amendments prescribed by clause (o) of the definition of "Permitted Liens" set
forth in the Credit Agreement which has resulted in a breach of the covenant
contained in Section 7.2 of the Credit Agreement and an Event of Default
pursuant to Section 8.1(c)(i) of the Credit Agreement, (b) on or before December
26, 2002, the terminations, releases, and UCC amendments prescribed by clause
(c) of paragraph 1 of the certain Postclosing Agreement dated as of the Closing
Date among the original parties to the Credit Agreement (as amended or otherwise
modified from time to time, the "Postclosing Agreement") which is an Event of
Default pursuant to the Postclosing Agreement, and (c) on or before November 26,
2002, the agreements prescribed by clause (d) of paragraph 1 of the Postclosing
Agreement which is an Event of Default pursuant to the Postclosing Agreement
(the Events of Default described in clause (a), clause (b), and clause (c)
preceding being referred to herein collectively as the "Specified Defaults").
The Credit Parties have requested that the Lenders waive the Specified Defaults.
Effective as of the Amendment Date, and subject to the conditions precedent and
other terms of this Amendment, the requisite Lenders hereby waive the Specified
Defaults.
ARTICLE 3
Amendments
Section 3.1 Amendment to Section 1.1 of the Credit Agreement. Effective as
of the Amendment Date, the definition of "Reserves" in Section 1.1 of the Credit
Agreement is hereby amended by: (a) deleting the word "and" at the end of clause
(g); (b) replacing the period at the end of clause (h) with a semi-colon and the
word "and"; and (c) inserting a new clause (i) which shall read in its entirety
as follows:
(i) reserves for accounts payable owing to any Person pursuant to a
transaction whereby a Borrower has transferred, converted, or otherwise
reclassified consigned inventory, unless the Borrowers have delivered to
the Agent an executed release letter from such Person, in substantially
the form of Exhibit F or otherwise in form and substance satisfactory to
the Agent in its sole discretion.
Section 3.2 Addition of Section 5.23 to the Credit Agreement. Effective as
of the Amendment Date, the Credit Agreement is hereby amended to add Section
5.23 to the Credit Agreement, which shall read in its entirety as follows:
Section 5.23 Tax Shelter Regulations. No Credit Party intends to
treat the Loans and/or Letters of Credit and related transactions as being
a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4). In the event any Credit Party determines to take any
action inconsistent with such intention, such Credit Party will promptly
notify the Agent and the Lenders thereof. If any Credit Party so notifies
the Agent, each Credit Party acknowledges that one or more of the Lenders
may treat its Loans and/or its interest in Non-Ratable Loans and/or
Discretionary Over-Advances and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and
such Lender or Lenders, as applicable, will maintain the lists and other
records required by such Treasury Regulation.
Section 3.3 Amendment to Section 6.1 of the Credit Agreement. Effective as
of the Amendment Date, Section 6.1 of the Credit Agreement is hereby amended by:
(a)
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renumbering clause (q) to be clause (r) and (b) inserting a new clause (q) which
shall read in its entirety as follows:
(q) Reportable Transactions. The Credit Parties will notify the
Agent and the Lenders promptly of any intention by any Credit Party to
treat the Loans and/or Letters of Credit and related transactions as being
a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), and the Credit Parties will, promptly after providing
such notification to the Agent and the Lenders, deliver to the Agent and
the Lenders a duly completed copy of IRS Form 8886 or any successor form.
Section 3.4 Amendment to Section 7.15 of the Credit Agreement. Effective
as of the Amendment Date, Section 7.15 of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
Section 7.15 Inventory Classification. During any calendar month,
the Borrowers and the Guarantors shall not transfer, convert, or otherwise
reclassify (a) Eligible Inventory into consigned goods unless (i) no
Default or Event of Default exists, (ii) the aggregate fair market value
thereof does not exceed $2,000,000, and (iii) the Borrowers and the
Guarantors provide at least ten (10) Business Days prior written notice
thereof to the Agent, which notification contains satisfactory
calculations that, after giving effect to such transaction, the aggregate
principal amount of the Obligations will not exceed the Borrowing Base and
(b) consigned goods into inventory owned by a Borrower or a Guarantor
unless (i) no Default or Event of Default exists and (ii) the Borrowers
and the Guarantors provide at least ten (10) Business Days prior written
notice thereof to the Agent.
Section 3.5 Amendment to Section 10.15 of the Credit Agreement. Effective
as of the Amendment Date, Section 10.15 of the Credit Agreement is hereby
amended to add the following sentence to the end thereof:
Notwithstanding anything herein to the contrary, except as otherwise
reasonably necessary to comply with applicable securities laws, the
information subject to this Section 10.15 shall not include, and the Agent
and each Lender may disclose without limitation of any kind, any
information with respect to the "tax treatment" and "tax structure" (in
each case, within the meaning of Treasury Regulation Section 1.6011-4) of
the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the Agent
or such Lender relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of the
transactions as well as other information, this sentence shall only apply
to such portions of this Agreement or the Loan Documents that relate to
the
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tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby.
Section 3.6 Addition of Exhibit F to the Credit Agreement. Effective as of
the Amendment Date, the Credit Agreement is hereby amended to add Exhibit F to
the Credit Agreement, which shall read in its entirety as set forth on Exhibit A
hereof.
ARTICLE 4
Conditions
Section 4.1 Conditions Precedent. The effectiveness of Article 2 and
Article 3 of this Amendment is subject to the satisfaction of each of the
following conditions precedent:
(a) The Agent shall have received all of the following, each dated
the date of this Amendment (unless otherwise indicated), in form and
substance satisfactory to the Agent:
(i) Amendment Documents. This Amendment and any other
instrument, document, or certificate reasonably required by the
Agent to be executed or delivered by the Credit Parties in
connection with this Amendment, in each case duly executed (the
"Amendment Documents");
(ii) Additional Information. The Agent shall have received
such additional documents, instruments, and information as the Agent
may reasonably request to effect the transactions contemplated
hereby; and
(iii) Expenses. The Borrowers shall have paid to the Agent all
fees, costs, and expenses owed to and/or incurred by the Agent in
connection with the Credit Agreement or this Amendment.
(b) The representations and warranties contained herein, in the
Credit Agreement, and in all other Credit Documents, as amended hereby,
shall be true and correct in all material respects as of the date hereof
as if made on the date hereof except for such representations and
warranties limited by their terms to a specific date.
(c) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements,
documents, and instruments executed and/or delivered pursuant hereto, and
all legal matters incident thereto, shall be satisfactory to the Agent;
and
(d) No Default or Event of Default shall be in existence after
giving effect to this Amendment.
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ARTICLE 5
Miscellaneous
Section 5.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and, except as expressly modified and superseded
by this Amendment, the terms and provisions of the Credit Agreement and the
other Credit Documents are ratified and confirmed and shall continue in full
force and effect. Each of the Credit Parties, the Agent, and the Lenders agree
that the Credit Agreement as amended hereby and the other Credit Documents shall
continue to be legal, valid, binding, and enforceable in accordance with their
respective terms.
Section 5.2 Representations and Warranties. Each Credit Party hereby
represents and warrants to the Agent and the Lenders that, as of the date of and
after giving effect to this Amendment, (a) the execution, delivery, and
performance of this Amendment and any and all other Amendment Documents executed
and/or delivered in connection herewith have been authorized by all requisite
action on the part of such Credit Party and will not violate such Credit Party's
organizational or governing document, (b) the representations and warranties
contained in the Credit Agreement and in the other Credit Documents are true and
correct on and as of the date hereof, in all material respects, as if made again
on and as of the date hereof except for such representations and warranties
limited by their terms to a specific date, and (c) after giving effect to this
Amendment, no Default or Event of Default exists.
Section 5.3 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Credit
Document, including any Credit Document furnished in connection with this
Amendment, shall survive the execution and delivery of this Amendment and the
other Credit Documents, and no investigation by the Agent or any Lender, or any
closing, shall affect the representations and warranties or the right of the
Agent and the Lenders to rely upon them.
Section 5.4 Reference to Credit Agreement. Each of the Credit Documents,
including the Credit Agreement, the Amendment Documents, and any and all other
agreements, documents, or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Credit Agreement as
amended hereby, are hereby amended so that any reference in such Credit
Documents to the Credit Agreement, whether direct or indirect, shall mean a
reference to the Credit Agreement as amended hereby.
Section 5.5 Effect of Amendment. The effect of the waiver contained in
Section 2.1 of this Amendment is expressly limited as provided herein, and in
order to induce the Agent and the Lenders to agree to such waiver, each of the
Credit Parties agrees that such waiver shall not constitute or be deemed a
waiver of any other Event of Default, now existing or hereafter arising, or a
waiver of any rights or remedies arising as a result of any such other Event of
Default. No consent or waiver, express or implied, by the Agent or any Lender to
or for any breach of or deviation from any covenant, condition, or duty by any
Credit Party shall be deemed a consent or waiver to or of any other breach of
the same or any other covenant,
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condition, or duty. Each of the Credit Parties (individually, a "subject Credit
Party") hereby (a) consents to the execution and delivery of this Amendment by
the other Credit Parties, (b) agrees that this Amendment shall not limit or
diminish the obligations of the subject Credit Party under its certain Credit
Documents delivered in connection with the Credit Agreement, executed or joined
in by the subject Credit Party and delivered to the Agent, (c) reaffirms the
subject Credit Party's obligations under each of such Credit Documents, and (d)
agrees that each of such Credit Documents remains in full force and effect and
is hereby ratified and confirmed.
Section 5.6 Releases. As a material inducement to the Agent and the
Lenders to enter into this Amendment, each of the Credit Parties (collectively,
the "Releasing Parties"), by their execution below, hereby represent and warrant
that there are no claims or offsets against, or defenses or counterclaims to,
the terms and provisions of and the other obligations created or evidenced by
the Credit Agreement or the other Credit Documents. The Releasing Parties hereby
release, acquit, and forever discharge the Agent and the Lenders, and their
respective officers, employees, attorneys and agents (all of whom are herein
jointly and severally referred to as the "Released Parties") from any and all
liability, damages, losses, obligations, costs, expenses, suits, claims,
demands, causes of action for damages or any other relief, whether or not now
known or suspected, of any kind, nature or character, at law or in equity, that
any Releasing Party now has or may have ever had as a result of actions
occurring on or prior to the date hereof against any of the Released Parties
(hereinafter being collectively referred to as the "Claims"), all of which
Claims are hereby waived.
Section 5.7 Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.8 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
APPLICABLE LAWS OF THE UNITED STATES.
Section 5.9 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Credit Parties, the Agent, and the Lenders and
their respective successors and assigns, except no Credit Party may assign or
transfer any of its respective rights or obligations hereunder except in
accordance with the provisions of the Credit Agreement.
Section 5.10 Counterparts. This Amendment may be executed in one or more
counterparts, and on telecopy counterparts each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
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Section 5.11 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.12 Entire Agreement. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers in several counterparts effective as
of the Amendment Date specified in the introductory paragraph hereof.
CREDIT PARTIES:
XXXXXXXX'X INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer
XXXXXXXX'X FLORIDA PARTNERSHIP
By: Xxxxxxxx'x Management Corp., its
Managing Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
President
FI STORES LIMITED PARTNERSHIP
By: Xxxxxxxx'x Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer
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XXXXXXXX'X HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Secretary and Treasurer
XXXXXXXX'X MANAGEMENT CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
President
FCJV HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
President
FCJV, L.P.
By: FCJV Holding Corp.,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
President
XXXXXXXX'X INVESTMENTS LLC
By: Xxxxxxxx'x Inc.,
its managing member
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Chief Financial Officer,
Secretary and Treasurer
------------------------
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XXXXXXXX'X BENEFICIARY INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Secretary and Treasurer
------------------------------
AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
-------------------------------
Title: Senior Vice-President
------------------------------
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
-------------------------------
Title: Senior Vice-President
------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------
Title: Vice-President
------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxx
---------------------------------
Name: Xxxxxx X. Xxx
-------------------------------
Title: Assistant Vice-President
------------------------------
JPMORGAN CHASE BANK
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
-------------------------------
Title: Vice-President
------------------------------
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THE PROVIDENT BANK
By: /s/ Xxxx Xxx Xxxxxx
---------------------------------
Name: Xxxx Xxx Xxxxxx
-------------------------------
Title: Credit Officer
------------------------------
ABN AMRO BANK N.V.
By: /s/
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxxx
-------------------------------
Title: Vice-President
------------------------------
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EXHIBIT A
TO
WAIVER AND FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
[Consignor's Letterhead]
As of _______________, _____
Xxxxxxxx'x Inc.
0 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Bank of America, N.A.
00 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Re: [CONSIGNMENT AGREEMENT] dated as of [___________, ______]
(the "Consignment Agreement") between [INSERT NAME OF
XXXXXXXX'X ENTITY PARTY TO THE CONSIGNMENT AGREEMENT] (the
"Consignee"), [INSERT CONSIGNOR'S NAME HERE] (the "Consignor")
Ladies and Gentlemen:
Reference is made to the Consignment Agreement, pursuant to which the
Consignor from time to time delivers goods to the Consignee pursuant to the
terms thereof. In addition, from time to time the Consignee may purchase goods
from Consignor, including goods which were previously delivered by the Consignor
to the Consignee pursuant to the Consignment Agreement (each such purchase by
the Consignee from the Consignor, whether evidenced by letter agreement, xxxx of
sale, memo, book entry, or otherwise, a "Purchase"). In connection with each
Purchase, the Consignee has requested that the Consignor provide this agreement
with respect to Consignor's interest in the goods which are the subject of such
Purchase.
For value received, the receipt and sufficiency of which are hereby
acknowledged by the Consignor, the Consignor hereby agrees that the Consignor
has no right, title, or interest in any goods which are the subject of a
Purchase ("Purchased Inventor"), or any proceeds thereof. Without limiting the
foregoing, the Consignor hereby (a) releases, terminates, and discharges all
title, rights of ownership, liens, security interests, pledges, mortgages, and
other interests and rights in all Purchased Inventory, and all proceeds thereof,
and (b) authorizes the Consignee and the agent of Consignee's secured lenders,
Bank of America, N.A. ("Bank of America") to file one or more financing
statements (including an initial financing statement in lieu of continuation
statements) and amendments without the Consignor's signature in order to release
all Purchased Inventory from any effective financing statements now or hereafter
filed by the Consignor against the Consignee. Any such financing statement will
describe the Consignor as the "Secured Party" and the Consignee as the "Debtor"
and contain a description of the property which is the subject of such financing
statement or "collateral" as set forth on Exhibit A hereto.
To induce the Consignor to agree to the terms of this agreement ("Release
Letter"), the Consignee (by its execution below) agrees that, except as provided
herein with respect to Purchased Inventory, and proceeds thereof:
1. the Consignor retains its rights, title, and interests in all
goods which are at any time the subject of a consignment by the
Consignor to the Consignee pursuant to the terms of the
Consignment Agreement;
2. all terms and provisions of the Consignment Agreement and all
rights and obligations of the Consignee and the Consignor
thereunder shall remain in full force and effect and are ratified
and confirmed in all respects; and
3. the Consignment Agreement shall continue to be legal, valid,
binding, and enforceable in accordance with its respective terms.
THIS RELEASE LETTER EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS WHETHER WRITTEN OR ORAL RELATING TO THE
SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. This Release Letter shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to
conflicts of law principles.
This Release Letter may be executed in one or more counterparts and on
telecopy counterparts each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
Very truly yours,
[CONSIGNOR]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Accepted and Agreed to as of __________________, _______:
[CONSIGNEE]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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EXHIBIT A
Collateral Description for Financing Statements
This financing statement is filed to reflect the secured party's interest in
certain goods held by the debtor which are the subject of a consignment by the
secured party ("Consignor") with the debtor ("Consignee") pursuant to that
certain [DESCRIBE THE CONSIGNMENT AGREEMENT HERE]. The "collateral" includes all
goods which are consigned from Consignor to Consignee, including, goods
containing gold, silver, diamonds, platinum, precious stones or other precious
metals, or similar items heretofore or hereafter consigned to Consignee whether
at the address given or at any other address (collectively, the "Consigned
Merchandise"). The "collateral" excludes any goods which are owned by Consignee,
including any goods which, from time to time, were previously Consigned
Merchandise but which thereafter have been sold by Consignor to Consignee,
whether evidenced by letter agreement, xxxx of sale, memo, book entry, or
otherwise (any such sold goods, "Sold Merchandise"). The "collateral" excludes,
in any event, all proceeds and products of Consigned Merchandise and of Sold
Merchandise.
