THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.3
[EXECUTION COPY]
THIRD AMENDMENT
TO CREDIT AGREEMENT
TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the “Amendment”), dated as of November 16, 2004, is
made by and among Too, Inc., a Delaware corporation (the “Borrower”), each of the Guarantors (as
defined in the Credit Agreement defined below), the Lenders (as defined in the Credit Agreement
defined below), National City Bank, in its capacity as sole lead arranger and administrative agent
for the Lenders under the Credit Agreement (the “Agent”), Fifth Third Bank, as co-syndication
agent, LaSalle Bank National Association, as co-syndication agent, Bank of America, N.A., as
co-documentation agent, and The Huntington National Bank, as co-documentation agent.
BACKGROUND
The parties hereto are parties to that Credit Agreement, dated as of April 29, 2003 (as
amended to the date hereof, the “Credit Agreement”), and desire to amend various terms thereof as
set forth herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth and incorporating the above-defined terms herein and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Defined Terms; References. Terms not otherwise defined in this Amendment shall have the
respective meanings ascribed to them in the Credit Agreement. Each reference to “hereof,”
"hereunder,” “herein,” and similar references contained in the Credit Agreement, and each reference
to “this Agreement” and similar references contained in the Credit Agreement, shall refer to the
Credit Agreement as and to the extent amended hereby.
2. Amendment of Credit Agreement.
(a) Minimum Tangible Net Worth. Effective as of the date hereof, Section 7.02(o) of
the Credit Agreement is hereby amended and restated in its entirety as follows:
“(o) Minimum Tangible Net Worth. The Borrower shall not at any time permit
Consolidated Tangible Net Worth to be less than $225,000,000.
(b) Definitions. Effective as of the date hereof, the definition of “Base Net Worth”
set forth at Section 1.01 of the Credit Agreement is hereby deleted.
3. Representations and Warranties. Each of the Loan Parties hereby represents and warrants to the
Lenders, after giving effect to this Amendment, as follows:
(a) Authorization. The execution and delivery by the Loan Parties of this Amendment,
the consummation by the Loan Parties of the transactions contemplated by the Credit Agreement as
amended hereby, and the performance by each Loan Party of its respective obligations under the
Credit Agreement as amended hereby have been duly authorized by all necessary corporate or similar
applicable proceedings on the part of each Loan Party. On the date of each Loan Party’s execution
hereof, there are
no set-offs, claims, defenses, counterclaims, causes of action, or deductions of any nature
against any of the Obligations;
(b) Valid and Binding. This Amendment has been duly and validly executed and
delivered by each Loan Party and constitutes, and the Credit Agreement as amended hereby
constitutes, the legal, valid and binding obligations of each Loan Party enforceable in accordance
with the terms hereof and thereof, except as the enforceability of this Amendment or the Credit
Agreement as amended hereby may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors’ rights or by general principles of
equity limiting the availability of equitable remedies;
(c) No Conflicts. Neither the execution and delivery of this Amendment nor the
consummation of the transactions contemplated by this Amendment or by the Credit Agreement as
amended hereby nor compliance with the terms and provisions of this Amendment or of the Credit
Agreement as amended hereby, by any of the Loan Parties, will (a) violate any Law, (b) conflict
with or result in a breach of or a default under the articles or certificate of incorporation or
bylaws or similar organizational documents of any Loan Party or any material agreement or
instrument to which any Loan Party is a party or by which any Loan Party or any of their respective
properties (now owned or hereafter acquired) may be subject or bound, (c) require any consent or
approval of any Person or require a mandatory prepayment or any other payment under the terms of
any material agreement or instrument to which any Loan Party is a party or by which any Loan Party
or any of their respective properties (now owned or hereafter acquired) may be subject or bound,
(d) result in the creation or imposition of any Lien upon any property (now owned or hereafter
acquired) of any Loan Party, or (e) require any authorization, consent, approval, license, permit,
exemption or other action by, or any registration, qualification, designation, declaration or
filing with, any Official Body; and
(d) No Defaults. After giving effect to the amendments made herein: (i) no Event of
Default under and as defined in the Credit Agreement has occurred and is continuing, and (ii) the
representations and warranties of each of Borrower and the other Loan Parties contained in the
Credit Agreement and the other Loan Documents are true and correct on and as of the date hereof
with the same force and effect as though made on such date, except to the extent that any such
representation or warranty expressly relates solely to a previous date.
4. Effectiveness of Amendment.
(a) This Amendment shall become effective as of the date hereof upon receipt by the Agent,
from each of the Loan Parties and from the Required Lenders, of a counterpart hereof signed by such
party or facsimile or other written confirmation (in form satisfactory to Agent) that such party
has signed a counterpart hereof.
(b) Upon the effectiveness hereof, the Credit Agreement shall be amended hereby in accordance
with the terms hereof, and this Amendment and the Credit Agreement shall hereafter be one agreement
and any reference to the Credit Agreement in any document, instrument, or agreement shall hereafter
mean and include the Credit Agreement as amended hereby. In the event of irreconcilable
inconsistency between the terms or provisions hereof and the terms or provisions of the Credit
Agreement, the terms and provisions hereof shall control. Except as specifically amended by the
provisions hereof, the Credit Agreement and all other Loan Documents shall remain in full force and
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effect and are hereby ratified and confirmed by the parties hereto. Each Lender, by its
execution hereof, hereby consents to this Amendment pursuant to the Credit Agreement.
5. Joinder of Guarantors. Each of the Guarantors hereby joins in this Amendment to evidence its
consent hereto, and each Guarantor hereby reaffirms its obligations set forth in the Credit
Agreement, as hereby amended, and in each Guaranty Agreement and each other Loan Document given by
it in connection therewith..
6. Governing Law. This Amendment shall be deemed to be a contract under the laws of the State of
Ohio and for all purposes shall be governed by and construed and enforced in accordance with the
internal laws of the State of Ohio without regard to its conflict of laws principles.
7. Counterparts; Telecopy. This Amendment may be signed in any number of counterparts each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of executed signature pages by facsimile or other electronic transmission will
constitute effective and binding execution and delivery.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 8 TO THIRD AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused
this Amendment to be executed and delivered as of the day and year first above written.
| BORROWER: | ||||||||
| TOO, INC. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: Xxxxxxx X. Xxxxxx Title: Chairman, President and CEO |
||||||||
| GUARANTORS: | ||||||||
| AMERICAN FACTORING, INC. | ||||||||
| By: | /s/ Xxxxxxx X. May | |||||||
| Name: Xxxxxxx X. May Title: Vice President |
||||||||
| FLORET, LLC | ||||||||
| By: | /s/ Xxxxxxx XxXxxxxx | |||||||
| Name: Xxxxxxx XxXxxxxx Title: President |
||||||||
| JUSTICE STORES, LLC | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: Xxxxxxx X. Xxxxxx Title: Chairman, President and CEO |
||||||||
| LT HOLDING, INC. | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||||
| Name: Xxxxxx Xxxxxxxx Title: President and CEO |
||||||||
[SIGNATURE PAGE 2 OF 8 TO THIRD AMENDMENT]
| LT IMPORT CORP. | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||||
| Name: Xxxxxx Xxxxxxxxx Title: President and CEO |
||||||||
| LIMITED TOO CATALOG PRODUCTION, INC. | ||||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||||
| Name: Xxxxxx X. Xxxxx Title: President and CEO |
||||||||
| LIMITED TOO CREATIVE DESIGN, INC. | ||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Name: Xxxxx X. Xxxxxxx Title: President and CEO |
||||||||
| LIMITED TOO DIRECT, LLC | ||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Name: Xxxxx X. Xxxxxxx Title: President and CEO |
||||||||
| LIMITED TOO PURCHASING, INC. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: Xxxxxxx X. Xxxxxx Title: President and CEO |
||||||||
| LIMITED TOO STORE PLANNING, INC. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: Xxxxxxx X. Xxxxxx Title: President and CEO |
||||||||
[SIGNATURE PAGE 3 OF 8 TO THIRD AMENDMENT]
| MISH MASH, LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: President and CEO |
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| TOO GC, LLC | ||
| By: | /s/ Xxxxxxx X. May | |
| Name: Xxxxxxx X. May Title: President, Treasurer, Secretary |
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| TOO BRANDS, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx Title: President and CEO |
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| TOO BRANDS INVESTMENT, LLC | ||
| By: | /s/ Xxxxxxx X. May | |
| Name: Xxxxxxx X. May Title: President, CEO and Treasurer |
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| TOO IMPORT, LLP | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx Title: President and CEO |
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[SIGNATURE PAGE 4 OF 8 TO THIRD AMENDMENT]
| NATIONAL CITY BANK, individually and as Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: Xxxxx X. Xxxxxxx Title: Senior Vice President |
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[SIGNATURE PAGE 5 OF 8 TO THIRD AMENDMENT]
| FIFTH THIRD BANK | ||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxx | |||
| Name: Xxxxxxxxxxx X. Xxxxx Title: Vice President |
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[SIGNATURE PAGE 6 OF 8 TO THIRD AMENDMENT]
| LASALLE BANK NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: Xxxxxx X. Xxxxx Title: Senior Vice President |
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[SIGNATURE PAGE 7 OF 8 TO THIRD AMENDMENT]
| BANK OF AMERICA, N.A. | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: Xxxxx Xxxxx Title: Vice President |
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[SIGNATURE PAGE 8 OF 8 TO THIRD AMENDMENT]
| THE HUNTINGTON NATIONAL BANK | ||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: Xxxx X. Xxxxxxxx Title: Vice President |
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