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EXHIBIT 10.3
EXECUTION COPY
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of September 27, 1999 (this "Amendment"), is among XXXXXX GREETINGS, INC., a
Delaware corporation (the "Borrower"), the lenders party to the Credit Agreement
described below (each a "Lender" and, collectively, the "Lenders") and BANK ONE,
INDIANA, NATIONAL ASSOCIATION, a national banking association formerly known as
NBD Bank, N.A., as agent (in such capacity, the "Agent") for the Lenders.
INTRODUCTION
The Borrower, the Lenders and the Agent have entered into the Amended
and Restated Credit Agreement, dated as of May 11, 1999, as amended by the First
Amendment to Amended and Restated Credit Agreement, dated as of July 27, 1999,
and the Second Amendment to Amended and Restated Credit Agreement, dated as of
August 27, 1999 (the "Credit Agreement"). The Company now desires that the
Credit Agreement be further amended in certain respects, and the Lenders and the
Agent are willing to so amend the Credit Agreement on the terms and conditions
herein set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein and in the Credit Agreement contained, the parties hereto
agree as follows:
ARTICLE 1. AMENDMENTS TO CREDIT AGREEMENT
Effective upon the date that the conditions precedent set forth in
Article 2 of this Amendment are satisfied, which date (the "Amendment Date")
shall be determined by the Agent in its sole discretion, the Credit Agreement is
amended as follows:
1.1 The definition of the term "Commitment Amount" in Section 1.1 is
amended and restated in full as follows:
"Commitment Amount": as of any date prior to the end of the Review
Period and with respect to any Lender, the amount set forth below
opposite each such Lender's name:
Lender Commitment Amount
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Bank One, Indiana, National Association $ 9,583,333.33
Xxxxxx Trust and Savings Bank $ 7,666,666.67
Fifth Third Bank $ 5,750,000.00
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Total $23,000,000.00
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and, as of any date during the portion of the Commitment Period, if
any, after the Review Period and with respect to any Lender, the amount
set forth adjacent to its name under the heading "Commitment Amount" in
Exhibit A on such date or, in the event that such Lender is not listed
on Exhibit A, the "Commitment Amount" which such Lender shall have
assumed from another Lender in accordance with Section 11.7 on or prior
to such date, as all of the same may be adjusted from time to time
pursuant to Sections 2.4 and 11.7(c).
1.2 In clause (g) of the definition of the term "Eligible Inventory" in
Section 1.1, the date "October 1, 1999" is deleted, and the date "October 15,
1999 is inserted in its place.
1.3 The definition of the term "Review Period" in Section 1.1 is
amended and restated in full as follows:
"Review Period": the period from and including the First Amendment
Effective Date to and including November 1, 1999.
ARTICLE 2. CONDITIONS PRECEDENT
As conditions precedent to the effectiveness of the amendments to the
Credit Agreement set forth in Article 1 of this Amendment, the Agent shall
receive the following documents and the following matters shall be completed,
all in form and substance satisfactory to the Agent and the Required Banks:
2.1 This Amendment duly executed on behalf of the Borrower, the Agent
and the Required Lenders.
2.2 Payment to each Lender executing this Amendment of a fee for this
Amendment in the amount equal to one-quarter percent (1/4%) of the difference
between such Lender's Commitment Amount for the Review Period pursuant to the
Second Amendment referenced above and such Lender's Commitment Amount for the
Review Period pursuant to this Amendment, and payment to the Agent (for its own
account) of such fees to which the Agent and the Borrower may agree in
connection with this Amendment.
2.3 Such other documents, and completion of such other matters, as the
Agent and the Required Banks may reasonably request.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Amendment, the Borrower represents and warrants that:
3.1 The execution, delivery and performance by the Borrower of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action and are not in contravention of any law, rule or
regulation, or any judgment, decree, writ, injunction,
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order or award of any arbitrator, court or governmental authority, or of the
terms of the Borrower's charter or by-laws, or of any contract or undertaking to
which the Borrower is a party or by which the Borrower or its property is or may
be bound or affected.
3.2 This Amendment is a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms.
3.3 No consent, approval or authorization of or declaration,
registration or filing with any governmental or nongovernmental person or
entity, including without limitation any creditor, stockholder or lessor of the
Borrower, is required on the part of the Borrower in connection with the
execution, delivery and performance of this Amendment or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of this Amendment.
3.4 Excluding the effect of the Known Default (as defined in the First
Amendment referenced above), (a) after giving effect to the Amendments contained
in Article 1 of this Amendment, the representations and warranties contained in
Section 4 of the Credit Agreement are true on and as of the date hereof with the
same force and effect as if made on and as of the date hereof, and (b) no
Default or Event of Default has occurred and is continuing under the Credit
Agreement.
ARTICLE 4. MISCELLANEOUS
4.1 If the Borrower shall fail to perform or observe any term, covenant
or agreement in this Amendment, or any representation or warranty made by the
Borrower in this Amendment shall prove to have been incorrect in any material
respect when made, such occurrence shall be deemed to constitute an Event of
Default. Upon the occurrence of any such Event of Default, any other Event of
Default (other than the Known Default) under the Credit Agreement and the other
Loan Documents or the Commitment Termination Date (whether before, at or after
the end of the Review Period), notwithstanding anything in this Amendment to the
contrary, the Agent and the Lenders shall be entitled to exercise any and all
rights and remedies available to the Agent and the Lenders under the Credit
Agreement and the other Loan Documents and by law and the temporary waiver under
Article 2 of the First Amendment referenced above shall automatically be
terminated and have no further force or effect.
4.2 All references to the Credit Agreement in any document, instrument
or certificate referred to in the Credit Agreement or delivered in connection
therewith or pursuant thereto, hereafter shall be deemed references to the
Credit Agreement, as amended hereby.
4.3 Subject to the amendments herein provided and the other terms and
conditions of this Amendment, the Credit Agreement shall in all respects
continue in full force and effect.
4.4 Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement.
4.5 This Amendment shall be governed by and construed in accordance
with the laws of the State of Indiana.
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4.6 The Borrower agrees to pay the reasonable fees and expenses of
Xxxxxxxxx Xxxxxx PLLC, counsel for the Agent, in connection with the negotiation
and preparation of this Amendment and the documents referred to herein and the
consummation of the transactions contemplated hereby.
4.7 This Amendment may be executed upon any number of counterparts with
the same effect as if the signatures thereto were upon the same instrument.
4.8 The Borrower hereby represents and warrants that it is aware of no
claims or causes of action against the Agent, the Lenders or any of them.
Notwithstanding such representation and warranty, and as further consideration
for the agreements set forth in this Amendment, the Borrower, for itself and its
successors and assigns, hereby releases the Agent and each Lender, and their
respective officers, directors, employees, agents, attorneys, affiliates,
subsidiaries, and successors and assigns, from any liability, claim, right or
cause of action which now exists or hereafter arises, whether known or unknown,
arising from or in any way related to facts in existence as of the date hereof.
4.9 Each party hereto, after consulting or having had the opportunity
to consult with counsel, knowing, voluntarily, and intentionally waives any
right any of them may have to a trial by jury in any litigation based upon or
arising out of this Amendment, or any agreement referenced herein or other
related instrument or agreement, or any of the transactions contemplated by this
Amendment, or any course of conduct, dealing, statements (whether oral or
written) or actions of any of them. None of the parties hereto shall seek to
consolidate, by counterclaim or otherwise, any such action in which a jury trial
has been waived with any other action in which a jury trial cannot be or has not
been waived. These provisions shall not be deemed to have been modified in any
respect or relinquished by any party hereto except by a written instrument
executed by all of them.
4.10 The Borrower agrees to execute any and all documents reasonably
deemed necessary or appropriate by the Agent to carry out the intent of, and/or
to implement, this Amendment.
4.11 This Amendment constitutes the entire understanding of the parties
with respect to the subject matter hereof. This Amendment is binding on the
parties hereto and their respective successors and assigns, and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
If any of the provisions of this Amendment are in conflict with any applicable
statute or rule or law or otherwise unenforceable, such offending provisions
shall be null and void only to the extent of such conflict or unenforceability,
but shall be deemed separate from and shall not invalidate any other provision
of this Amendment.
4.12 No course of dealing on the part of the Agent or any Lender, nor
any delay or failure on the part of the Agent or any Lender in exercising any
right, power or privilege hereunder shall operate as a waiver of such right,
power or privilege or otherwise prejudice the Agent's or any Lender's rights and
remedies hereunder or under any Loan Document or any other agreement or
instrument of the Borrower with or in favor of the Agent and the Lenders; nor
shall any single or partial exercise thereof preclude any further exercise
thereof or the exercise of any other right, power or privilege. No right or
remedy conferred upon or reserved to the Agent and
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the Lenders under this Amendment or under any Loan Document or any other
agreement or instrument of the Borrower with or in favor of the Agent and the
Lenders is intended to be exclusive of any other right or remedy, and every
right and remedy shall be cumulative and in addition to every other right or
remedy granted thereunder or now or hereafter existing under any applicable law.
Every right and remedy granted by this Amendment or under any Loan Document or
any other agreement or instrument of the Borrower with or in favor of the Agent
and the Lenders or by applicable law to the Agent and the Lenders may be
exercised from time to time and as often as may be deemed expedient by the Agent
and the Lenders.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first-above written.
XXXXXX GREETINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Its: Exec. Vice President -
Finance & Operations
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BANK ONE, INDIANA, NATIONAL ASSOCIATION,
in its capacity as a Lender and in its capacity
as the Agent
By: /s/ Xxxxxx X. Xxxxxx
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Its: VP
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XXXXXX TRUST AND SAVINGS BANK
By:
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Its:
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FIFTH THIRD BANK
By: /s/ Xxxxx X. Xxxxxxx
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Its: Vice President
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THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
