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EXHIBIT 10.11
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated June 4, 1997 ("this
Amendment") is entered into by BOOKS-A-MILLION, INC., a Delaware corporation
("BAM"), AMERICAN WHOLESALE BOOK COMPANY, INC., an Alabama corporation ("AWBC";
BAM and AWBC are sometimes together referred to as the "Borrowers"), AMSOUTH
BANK OF ALABAMA, an Alabama banking corporation ("AmSouth"), SUNTRUST BANK,
ATLANTA, a Georgia banking corporation, and NATIONSBANK, N.A., a national
banking association, successor by merger to NationsBank, N.A. (South), a
national banking association formerly known as NationsBank of Georgia, N.A.
(collectively, the "Lenders"), and AMSOUTH BANK OF ALABAMA, an Alabama banking
corporation, as agent for the Lenders (the "Agent").
RECITALS
A. The Borrowers, the Agent and the Lenders have heretofore entered
into that certain Credit Agreement dated October 27, 1995 (the "Agreement")
pursuant to which the Lenders made available to the Borrowers a revolving credit
facility in an aggregate principal amount outstanding not to exceed $50,000,000
(the "Revolving Facility"), the proceeds of which are to be used by the
Borrowers for general corporate purposes.
A. The Borrowers have requested the Lenders to increase the Revolving
Facility to an aggregate principal amount outstanding not to exceed $90,000,000,
the proceeds of which will continue to be used by the Borrowers for general
corporate purposes.
B. The Lenders are willing to increase the amount of the Revolving
Facility available to the Borrowers only if, among other things, the Borrowers
enter into this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, and to
induce the Lenders to increase the amount of the Revolving Facility, the
Borrowers, the Lenders and the Agent hereby agree as follows:
1. Capitalized terms used in this Amendment and not otherwise defined
herein have the respective meanings attributed thereto in the Agreement.
2. The defined term "Applicable Commitment Percentage" set forth in
Article I of the Agreement is hereby deleted and replaced in its entirety by the
following:
"Applicable Commitment Percentage" shall mean, for each
Lender, a fraction, the numerator of which shall be the then
amount of such Lender's Commitment and the denominator of
which shall be the aggregate amount of the Commitments of all
the Lenders, which Applicable Commitment
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Percentage for each Lender as of June 4, 1997 is as set forth
on the signature pages of the First Amendment to Credit
Agreement under the caption "Applicable Commitment
Percentage".
3. The defined term "Cash Management Line of Credit" is hereby added to
Article I of the Agreement and shall read as follows:
"Cash Management Line of Credit" shall mean that certain line
of credit in the maximum principal amount of $10,000,000 made
available by AmSouth, as lender, to the Borrowers pursuant to
a Short-Term Credit Agreement dated as of October 27, 1995, as
amended by a certain First Amendment thereto dated November 1,
1996, and by a Second Amendment thereto dated June 4, 1997,
with a maturity date of June 3, 1998, as the same may be
renewed or extended from time to time hereafter.
4. The defined term "Revolving Facility" set forth in Article I of the
Agreement is hereby deleted and replaced in its entirety by the following:
"Revolving Facility shall mean the credit facility made
available to the Borrowers by the Lenders under the terms of
Article 2 in an aggregate amount of up to $90,000,000 as may
be reduced by the Borrowers pursuant to Section 2.7 hereof."
5. The defined term "Funded Debt" set forth in Article I of the
Agreement is hereby deleted and replaced in its entirety by the following:
"Funded Debt shall mean all Debt of BAM and the Consolidated
Entities, on a consolidated basis, that matures by its terms
more than one year after, or is renewable or extendible at the
option of the debtor to a date more than one year after the
date as of which Funded Debt is being determined, LESS the
amount of credit available to the Borrowers but not yet
advanced by AmSouth under the Cash Management Line of Credit."
6. The defined term "Termination Date" set forth in Article I of the
Agreement is hereby deleted and replaced in its entirety by the following:
"Termination Date shall mean June 3, 2002, as the same may be
extended from time to time in accordance with Section 2.12
hereof."
7. The reference to the figure "$50,000,000" as it appears in Section
2.1(a) of the Agreement is hereby amended to refer to the figure "$90,000,000."
8. Section 5.8 set forth in Article 5 of the Agreement is hereby
amended to read, in its entirety, as follows:
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SECTION 5.8 ERISA.
(a) Prohibited Transactions. The execution and delivery of
this Agreement and the issuance and delivery of the Notes as
contemplated hereby will not involve any prohibited transaction within
the meaning of ERISA or Section 4975 of the Internal Revenue Code, as
amended.
(b) Compliance. Based on ERISA and the regulations and
published interpretations thereunder, it is in compliance in all
material respects with the applicable provisions of ERISA.
(c) Reportable Events. No "Reportable Event," as defined in
Section 4043(b) of Title IV of ERISA, has occurred with respect to any
plan maintained by it.
(d) Liabilities. Neither BAM nor any Consolidated Entity is
currently or will become subject to any liability (other than routine
Plan expenses or contributions, if timely paid), tax or penalty
whatsoever to any person whomsoever, which liability, tax or penalty is
directly or indirectly related to any Plan including, but not limited
to, any penalty or liability arising under Title I or Title IV of
ERISA, any tax or penalty resulting from a loss of deduction under
Sections 404 or 419 of the Code, or any tax or penalty under Chapter 43
of the Code, except such liabilities, taxes, or penalties (when taken
as a whole) as will not have a material adverse effect on BAM and its
Consolidated Entities taken as a whole, or upon their financial
condition, assets, business, operations, liabilities or prospects; and
(e) Funding. BAM and each ERISA Affiliate has made full and
timely payment of all amounts (i) required to be contributed under the
terms of each Plan and applicable law and (ii) required to be paid as
expenses of each Plan. No Plan would have an "amount of unfunded
benefit liabilities" (as defined in Section 4001(a)(18) of ERISA) if
such Plan were terminated as of the date on which this representation
and warranty is made.
9. Notwithstanding the execution of this Amendment, all of the
indebtedness evidenced by each of the Notes shall remain in full force and
effect, as modified hereby, and nothing contained in this Amendment shall be
construed to constitute a novation of the indebtedness evidenced by any of the
Notes or to release, satisfy, discharge, terminate or otherwise affect or impair
in any manner whatsoever (a) the validity or enforceability of the indebtedness
evidenced by any of the Notes; (b) the liens, security interests, assignments
and conveyances effected by the Agreement or the Loan Documents, or the priority
thereof; (c) the liability of any maker, endorser, surety, guarantor or other
person that may now or hereafter be liable under or on account of any of the
Notes or the Agreement or the Loan Documents; or (d) any other security or
instrument now or hereafter held by the Lender as security for or as evidence of
any of the above-described indebtedness.
10. All references in the Loan Documents to "Credit Agreement" shall
refer to the Agreement as amended by this Amendment, and as the Agreement may be
further amended from time to time.
11. Each of the Notes dated October 27, 1995, executed and delivered by
the
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Borrower to the respective Lenders in connection with the execution of the
Agreement shall be marked "Renewed by that Certain Amended and Restated Note
dated June 4, 1997" and retained in the respective Lenders' files until the
Loans have been paid in full and the Agreement has been terminated in writing,
at which time each of the said Notes shall be returned to the Borrowers.
12. The Borrowers hereby certify that the organizational documents of
the Borrowers have not been amended since October 27, 1995.
13. The Borrowers hereby represent and warrant to the Lender that all
representations and warranties contained in the Agreement are true and correct
as of the date hereof; and the Borrowers hereby certify that no Event of Default
nor any event that, upon notice or lapse of time or both, would constitute an
Event of Default, has occurred and is continuing.
14. Except as hereby amended, the Agreement shall remain in full force
and effect as written. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which when
taken together shall constitute one and the same instrument. The covenants and
agreements contained in this Amendment shall apply to and inure to the benefit
of and be binding upon the parties hereto and their respective successors and
permitted assigns.
15. Nothing contained herein shall be construed as a waiver,
acknowledgment or consent to any breach of or Event of Default under the
Agreement and the Loan Documents not specifically mentioned herein.
16. This Amendment shall be governed by the laws of the State of
Alabama.
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IN WITNESS WHEREOF, each of the Borrowers, the Lenders and the Agent
has caused this Amendment to be executed and delivered by its duly authorized
corporate officer as of the day and year first above written.
BOOKS-A-MILLION, INC.
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Its Executive Vice President
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AMERICAN WHOLESALE BOOK COMPANY,
INC.
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Its Vice President
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Hand Delivery Address:
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Chief Financial Officer
Mailing Address:
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Chief Financial Officer
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AMSOUTH BANK OF ALABAMA
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Its Senior Vice President
Commitment Amount: $32,000,000
Applicable Commitment Percentage: 35.556%
Lending Office and Hand Delivery Address:
7th Floor, AmSouth-Sonat Tower
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Mailing Address:
P. O. Xxx 00000
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
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SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X./ Edge
---------------------------------------
Its Vice President
-----------------------------------
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Its Vice President
-----------------------------------
Commitment Amount: $29,000,000
Applicable Commitment Percentage: 32.222%
Lending Office and Hand Delivery Address:
00 Xxxx Xxxxx X.X.
Mail Code 000 - 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: X. XxXxxxxxx Xxxxxx, III
Mailing Address:
Post Office Box 4418
Mail Code 120
Xxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: X. XxXxxxxxx Xxxxxx, III
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NATIONSBANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
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Its Vice President
-----------------------------------
Commitment Amount: $29,000,000
Applicable Commitment Percentage: 32.222%
Lending Office, Hand Delivery and Mailing
Address:
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
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AMSOUTH BANK OF ALABAMA, as Agent
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Its Senior Vice President
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MASTER ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS MASTER ASSIGNMENT AND ACCEPTANCE AGREEMENT dated November 7, 1997
("this Agreement") is executed by and between AMSOUTH BANK, an Alabama banking
corporation, NATIONSBANK, N.A., a national banking association, and SUNTRUST
BANK, ATLANTA, a Georgia banking corporation (collectively, the "Assignors" or
individually, an "Assignor") and SOUTHTRUST BANK, NATIONAL ASSOCIATION, a
national banking association (the "Assignee").
RECITALS
WHEREAS, the Assignors (or their predecessors) have heretofore entered
into that certain Credit Agreement dated October 27, 1995, as amended by a First
Amendment to Credit Agreement dated June 4, 1997 (together and as amended from
time to time, the "Credit Agreement"), whereby the Assignors agreed to extend
Credit to BOOKS-A-MILLION, INC., a Delaware corporation, and AMERICAN WHOLESALE
BOOK COMPANY, INC., an Alabama corporation (together, the "Borrowers"), such
Credit being generally described as a $90,000,000 line of credit for Syndicated
Loans and Competitive Bid Loans, all as more particularly described in the
Credit Agreement;
WHEREAS, the Assignee wishes to purchase an interest in the Credit
extended by the Assignors to the Borrowers under the Credit Agreement, as more
fully set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and of other
good and valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, the Assignors and the Assignee hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used in this Agreement and in the foregoing recitals shall have the meanings
assigned to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. On and as of the Effective Date (as
defined below), each Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from each Assignor, WITHOUT RECOURSE, that
portion of each Assignor's individual rights and obligations as a Lender under
the Credit Agreement and the other Loan Documents that is equivalent to a
5.5555% interest in and to all of the rights and obligations of all of the
Lenders, collectively, under the Credit Agreement and the other Loan Documents,
such that after giving effect to this Agreement, the Assignee shall have the
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Applicable Commitment Percentage, the Commitment Amount, and the amount of
outstanding Syndicated Loans indicated "On and After the Effective Date" beneath
its signature on the attached signature page, and said rights and obligations
shall include, without limitation, (i) a percentage interest equal to Assignee's
Applicable Commitment Percentage in funded Syndicated Loans owing to the
Assignors on the Effective Date, (ii) the obligation to participate in future
Advances of Syndicated Loans to the Borrowers in accordance with the Assignee's
Applicable Commitment Percentage, and (iii) the right, but not the obligation,
to offer to make Competitive Bid Loans to the Borrowers as described in Article
2 of the Credit Agreement.
3. REPRESENTATIONS AND WARRANTIES OF ASSIGNORS. Each Assignor (i)
represents and warrants that, as of the Effective Date, its Commitment Amount,
Applicable Commitment Percentage and the aggregate outstanding principal amount
of the Syndicated Loans owing to it (without giving effect to assignments
thereof set forth in this Agreement) are correctly set forth beneath each
Assignor's signature on the attached signature pages under the heading "Before
the Effective Date"; (ii) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (iii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any of the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
of the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or the
performance or observance by Borrowers of any of their obligations under the
Credit Agreement or any of the Loan Documents or any other instrument or
document furnished pursuant thereto.
4. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements provided most recently by the Borrowers under
Section 7.3 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Agreement; (ii) agrees that it will, independently and without reliance upon the
Agent or the Assignors (individually or collectively) and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes the Agent to take such actions on its
behalf and to exercise such powers under the Credit Documents as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by the Lenders; and (v) specifies as its address for
notices and its Applicable Lending Office, until otherwise specified in writing,
the office set forth beneath its name on the attached signature page.
5. NOTES. Each Assignor (i) attaches its Amended and Restated
Syndicated Promissory Note dated June 4, 1997 and requests that the Agent
exchange such note for a Second Amended and Restated Syndicated Note, executed
by the Borrowers, dated the Effective Date,
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and made payable to each Assignor in a maximum principal amount equal to such
Assignor's Commitment Amount "On and After the Effective Date" as set forth
beneath its signature on the attached signature pages and (ii) requests that the
Agent deliver to the Assignee two promissory notes, each executed by the
Borrowers, dated the Effective Date, and made payable to the Assignee as
follows: a Syndicated Promissory Note in a maximum principal amount equal to the
Assignee's Commitment Amount "On and After the Effective Date" set forth beneath
its signature on the attached signature pages and a Competitive Bid Note in the
maximum principal amount of $90,000,000.
6. EFFECTIVE DATE. The effective date for this Agreement shall be
November 7, 1997 (the "Effective Date"). Following the execution of this
Agreement, it will be delivered to the Agent for acceptance and recording by the
Agent.
7. EFFECT OF AGREEMENT. Upon such acceptance and recording, on and as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Agreement, have the rights and obligations
of a Lender thereunder and under the Loan Documents and (ii) the Assignors
shall, only to the extent provided in this Agreement, relinquish their rights
and be released from their obligations under the Credit Agreement.
8. PAYMENTS AND CREDITS. Upon such acceptance and recording, on and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest, commitment fees with
respect thereto) to the Assignors and Assignee in accordance with their
respective Applicable Commitment Percentages "On and After the Effective Date"
as set forth beneath their signatures on the attached signature pages. The
Assignors and Assignee shall make all appropriate adjustments in payments under
this Agreement, the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
9. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with, the laws of the State of Alabama. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
and all of which when taken together shall constitute one and the same
instrument. The covenants and agreements contained in this Agreement shall apply
to and inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. If any provision of this Agreement
is held prohibited or unenforceable in a particular jurisdiction, such provision
shall be ineffective only in the applicable jurisdiction and only in such
jurisdiction and only to the extent of such prohibition or unenforceability
without invalidating or affecting the enforceability of the remaining provisions
of this Agreement.
[Remainder of this page intentionally blank.]
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IN WITNESS WHEREOF, each of the Assignors, the Assignee and the Agent
has caused this Agreement to be executed and delivered by its duly authorized
corporate officer as of the day and year first above written.
"ASSIGNOR:"
AMSOUTH BANK
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Its Senior Vice President
Before the Effective Date:
-------------------------
Commitment Amount: $32,000,000
Applicable Commitment Percentage: 35.556%
Outstanding Syndicated Loans: $7,111,120
On and After the Effective Date:
-------------------------------
Commitment Amount: $27,000,000
Applicable Commitment Percentage: 30.000%
Outstanding Syndicated Loans: $6,000,000
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"ASSIGNOR:"
NATIONSBANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Its: Vice President
-----------------------------------------
Before the Effective Date:
-------------------------
Commitment Amount: $29,000,000
Applicable Commitment Percentage: 32.222%
Outstanding Syndicated Loans: $6,444,440
On and After the Effective Date:
-------------------------------
Commitment Amount: $24,000,000
Applicable Commitment Percentage: 26.667%
Outstanding Syndicated Loans: $5,333,400
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"ASSIGNOR:"
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X. Edge
------------------------------------------
Its: Vice President
-----------------------------------------
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Its: Vice President
-----------------------------------------
Before the Effective Date:
-------------------------
Commitment Amount: $29,000,000
Applicable Commitment Percentage: 32.222%
Outstanding Syndicated Loans: $6,444,440
On and After the Effective Date:
-------------------------------
Commitment Amount: $24,000,000
Applicable Commitment Percentage: 26.667%
Outstanding Syndicated Loans: $5,333,400
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"ASSIGNEE:"
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ J. Xxxxxx XxXxxxxx, Xx.
------------------------------------------
Its: Vice President
-----------------------------------------
Before the Effective Date:
-------------------------
Commitment Amount: $00.00
Applicable Commitment Percentage: zero
Outstanding Syndicated Loans: $00.00
On and After the Effective Date:
-------------------------------
Commitment Amount: $15,000,000
Applicable Commitment Percentage: 16.666%
Outstanding Syndicated Loans: $3,333,200
Lending Office and Hand Delivery Address:
----------------------------------------
6th Floor, SouthTrust Tower
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attention: J. Xxxxxx XxXxxxxx, Xx.
Mailing Address:
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxx XxXxxxxx, Xx.
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"AGENT:"
Accepted this 7th day of November, 1997
-----
AMSOUTH BANK, as Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Its: Senior Vice President
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CONSENT TO MASTER ASSIGNMENT AND ACCEPTANCE AGREEMENT:
"BORROWERS:"
BOOKS-A-MILLION, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Executive Vice President
------------------------------------
AMERICAN WHOLESALE BOOK COMPANY, INC., an Alabama corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
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