EXHIBIT 10.26(A)
[EXECUTION COPY]
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of March 14, 2003
(this "Amendment"), among ▇▇▇▇▇▇ A.S.L., LTD., a Delaware corporation (the
"Borrower"), certain subsidiaries of the Borrower listed on the signature pages
hereof as Guarantors (the "Guarantors", and together with the Borrower, the
"Grantors"), the financial institutions listed on the signature pages hereof as
Lenders (the "Lenders"), the financial institutions listed on the signature
pages hereof as Issuers (the "Issuers") and CITICORP USA, INC., as
administrative agent for the Lenders and the Issuers (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Lenders, the Issuers and
the Administrative Agent have heretofore entered into that certain Secured
Super-Priority Debtor-In-Possession Revolving Credit Agreement, dated as of
January 9, 2003 (the "Credit Agreement"); and
WHEREAS, the Borrower, the Guarantors, the Lenders, the Issuers and
the Administrative Agent now desire to amend the Credit Agreement in order to
(i) extend the maturity date of the Credit Agreement and (ii) revise the minimum
EBITDA to be maintained by the Borrower on the last day of certain Fiscal
Quarters;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in the Credit
Agreement shall have such meanings when used in this Amendment.
SECTION 2. AMENDMENT.
(a) Amendment to Definition of "Scheduled Termination Date". Section
1.1 of the Credit Agreement is hereby amended by amending the definition of
"Scheduled Termination Date" to read in its entirety as follows:
"Scheduled Termination Date" means December 31, 2003.
(b) Amendment to Minimum Required EBITDA Covenant. The table set
forth in Section 5.3 of the Credit Agreement is hereby deleted in its entirely
and replaced with the following table:
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FISCAL QUARTER ENDING MINIMUM EBITDA
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March 29, 2003 $ 7,000,000
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June 28, 2003 $ 9,000,000
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FISCAL QUARTER ENDING MINIMUM EBITDA
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September 27, 2003 $23,466,000
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December 27, 2003 $26,305,000
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March 27, 2004 $28,820,000
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June 26, 2004 $30,152,000
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September 25, 2004 $33,614,000
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January 1, 2005 $34,570,000
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April 2, 2005 $37,883,000
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July 2, 2005 $39,552,000
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October 1, 2005 $43,026,000
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December 31, 2005 $45,351,000
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SECTION 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment shall be subject to the prior or concurrent satisfaction of each of
the conditions precedent set forth in this Section 3.
(a) Execution and Delivery. Section 2(a) of this Amendment shall
become effective once this Amendment shall have been signed by, and counterparts
hereof shall have been delivered to the Administrative Agent (by hand delivery,
mail or telecopy) by, the Borrower, each Guarantor and each Lender. Section 2(b)
of this Amendment shall become effective once this Amendment shall have been
signed by, and counterparts hereof shall have been delivered to the
Administrative Agent (by hand delivery, mail or telecopy) by, the Borrower, each
Guarantor and the Requisite Lenders.
(b) Bankruptcy Court Approval. This Amendment shall have been
approved by the Bankruptcy Court in the Cases pursuant to an order in form and
substance satisfactory to the Administrative Agent and its counsel and on notice
satisfactory to them, and the Administrative Agent shall have received a copy of
that order entered by the Bankruptcy Court.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
The Borrower and each Guarantor hereby represents and warrants to
each Lender and the Administrative Agent that the following statements are true,
correct and complete:
(a) Power and Authority. The execution, delivery and performance by
each Grantor of this Amendment and the consummation of the transactions
contemplated hereby are within such Grantor's corporate, limited liability
company, partnership or other powers.
(b) Due Authorization; Non-Contravention. The execution, delivery and
performance by each Grantor of this Amendment and the consummation of the
transactions contemplated hereby:
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(i) have been duly authorized by all necessary corporate or other
action, including the consent of shareholders where required;
(ii) do not and will not (A) contravene any provision of such
Grantor's or any of its Subsidiaries' respective Constituent
Documents, (B) violate any other Requirement of Law applicable to such
Grantor, including Regulations T, U and X of the Federal Reserve
Board), or any order or decree of any Governmental Authority or
arbitrator applicable to such Grantor, (C) conflict with or result in
the breach of, or constitute a default under, or result in or permit
the termination or acceleration of, any post-petition Contractual
Obligation of such Grantor or any of its Subsidiaries, or (D) result
in the creation or imposition of any Lien upon any of the property of
such Grantor or any of its Subsidiaries; and
(iii) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental
Authority or any other Person other than those which have been or will
be, on or prior to the date hereof, obtained or made, copies of which
will have been or will be delivered to the Administrative Agent, and
each of which on the date hereof will be in full force and effect.
(c) Execution and Delivery. This Amendment has been duly executed and
delivered by each Grantor and is the legal, valid and binding obligation of each
Grantor, enforceable against such Grantor in accordance with its terms.
(d) Accuracy of Representations and Warranties; No Defaults or Events
of Default. After giving effect to this Amendment:
(i) the representations and warranties set forth in each Loan
Document will be true and correct in all material respects with the
same effect as if then made (unless stated to relate solely to an
earlier date, in which case such representation and warranty will be
true and correct as of such earlier date); and
(ii) no Default or Event or Default has occurred and is
continuing.
SECTION 5. MISCELLANEOUS PROVISIONS.
(a) Ratification of and References to the Credit Agreement. This
Amendment shall be deemed to be a Loan Document. The Credit Agreement, as
amended hereby, is hereby ratified, approved and confirmed in each and every
respect. All references to the Credit Agreement in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the
Credit Agreement as amended hereby.
(b) Consent of Guarantors; Ratification and Reaffirmation of
Guaranty. Each Guarantor hereby (i) consents to this Amendment, (ii)
acknowledges that its obligations under the Guaranty are not impaired or
affected and that the Guaranty remains in full force and effect and (iii)
ratifies and reaffirms its obligations under the Guaranty.
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(c) Costs and Expenses. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with or
arising out of the negotiation, preparation, execution and delivery of this
Amendment (including the reasonable fees and expenses of counsel).
(d) Further Assurances. At any time and from time to time, upon the
written request of the Administrative Agent and at the cost and expense of the
Borrower, the Borrower will promptly execute, acknowledge and/or deliver all
such further instruments and agreements and take such further actions as may be
reasonably necessary or appropriate to more fully implement the purposes of this
Amendment.
(e) Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
(f) Execution in Counterparts, Effectiveness, etc. This Amendment may
be executed by the parties hereto in several counterparts, each of which shall
be deemed to be an original and all of which shall constitute together but one
and the same agreement. Delivery of an executed signature page to this Amendment
by telecopy shall be as effective as delivery of a manually executed counterpart
to this Agreement.
(g) No Other Consents, Amendments or Waivers. Except for the
amendments and consents expressly set forth above, the text of the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect, and the Lenders and the Administrative Agent expressly reserve the
right to require strict compliance with the terms of the Credit Agreement and
the other Loan Documents.
(h) Governing Law; Entire Agreement. This Amendment and the rights
and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York, including,
without limitation, Section 5-1401 of the New York General Obligations Law, and,
to the extent applicable, the Bankruptcy Code. This Amendment constitutes the
entire understanding among the parties hereto with respect to the subject matter
hereof and supercedes any prior agreements, written or oral, with respect
thereto.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
Borrower
▇▇▇▇▇▇ A.S.L., LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
Chief Financial Officer and
Treasurer
Guarantors
A.S.L. RETAIL OUTLETS, INC.
ASL/K LICENSING CORP.
▇▇▇▇▇▇ HOLDINGS INC.
AKC ACQUISITION, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Treasurer
LION LICENSING, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Administrative Agent
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director and Vice President
Issuers
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director and Vice President
Lenders
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director and Vice President
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Stanza
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Name: ▇▇▇▇▇▇▇ ▇. Stanza
Title: Assistant Vice President
FOOTHILL CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
GMAC BUSINESS CREDIT LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
