Exhibit 4.1
-----------
AMENDMENT NO. 1 TO CREDIT AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment"), dated as of
June 10, 2002, is by and among XXXXXXXX'X OPERATING CO., a Delaware corporation
("Borrower"); DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation formerly known as Bankers Trust Company, acting in its capacity as
contractual representative (in such capacity "Agent") for Lenders (as such term
is defined in the Credit Agreement referred to herein below); and Lenders.
R E C I T A L S:
A. Borrower, Agent and Lenders are parties to that certain Credit Agreement
dated as of September 29, 2000 (as the same has been and may hereafter be
amended, restated, supplemented or otherwise modified and in effect from time to
time, the "Credit Agreement") by and among Agent, Lenders and Borrower, pursuant
to which Lenders have agreed to make loans and other financial accommodations to
Borrower.
B. Borrower has requested that Agent and Lenders amend the Credit Agreement
to, among other things, allow Borrower to make distributions for the purpose of
redeeming the Senior Notes, and Agent and Lenders are willing to agree to such
request, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, and subject to the terms and conditions hereof, the respective
parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used but not elsewhere defined in
this Amendment shall have the respective meanings ascribed thereto in the Credit
Agreement, as amended hereby.
2. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the date hereof, upon
satisfaction of the conditions precedent set forth in Section 3 below, and in
reliance upon the representations and warranties of Borrower set forth herein,
the Credit Agreement is hereby amended as follows:
2.1 SECTION 1.1 of the Credit Agreement is hereby amended by inserting
the following defined term therein in the appropriate alphabetical order:
"XXXXXX DISPOSITIONS" shall have the meaning ascribed to such
term in that certain letter agreement dated as of March 31, 2002 by
and among Borrower, Holdings, Parent, Agent and Lenders.
1
2.2 SECTION 8.2 of the Credit Agreement is hereby deleted in its
entirety and the following paragraph is substituted therefor:
8.2 CAPITAL EXPENDITURES. Borrower shall not and shall not permit
any of its Subsidiaries to, directly or indirectly, make payments for
Capital Expenditures in any fiscal year, in the aggregate for Borrower
and its Subsidiaries combined, in excess of (a) in Borrower's fiscal
year ending February 1, 2003, $12,000,000; and in each of Borrower's
fiscal years ending January 31, 2004 and thereafter, $6,500,000;
provided, however, that if Borrower's Fixed Charge Coverage Ratio for
the fiscal year ending February 1, 2003 or any fiscal year thereafter
is at least 1.25 to 1.00, then Borrower may make payments for Capital
Expenditures in the following fiscal year in an amount not to exceed
$10,000,000; plus, (b) in each fiscal year of Borrower (other than
Borrower's fiscal year ending February 1, 2003), 100% of the amount
permitted to be spent on Capital Expenditures pursuant to clause (a)
of this Section 8.2 in the immediately preceding fiscal year and not
so used. Borrower shall not and shall not permit any of its
Subsidiaries to, directly or indirectly, make any Capital Expenditures
that are not directly related to the businesses conducted on the
Closing Date by Borrower or such Subsidiary.
2.3 SECTION 8.8 of the Credit Agreement is hereby amended by deleting
the word "and" which appears at the end of subsection 8.8(c), relabeling
subsection 8.8(d) as subsection 8.8(e) and adding the following paragraph
as subsection 8.8(d):
(d) Borrower may make distributions to Parent at any time during
the Borrower's fiscal years ending February 1, 2003 and January 31,
2004, respectively, to permit Parent (contemporaneously with, and in
the same amount of, such distributions), to make distributions to
Holdings in order to permit Holdings to redeem (contemporaneously
with, and in the same amount of, such distributions), the Senior
Notes; provided, however, each of the following conditions must be
satisfied with respect to any such distribution:
(i) immediately before and after giving effect to such
distribution, no Default or Event of Default shall have
occurred and be continuing;
(ii) the aggregate amount of such distributions shall not
exceed (A) $15,000,000, during Borrower's fiscal year
ending February 1, 2003, or (B) $11,500,000 during
Borrower's fiscal year ending January 31, 2004, plus, up
to $5,000,000 of the amount permitted to be distributed
pursuant to clause (A) of this Section 2.3(d)(ii) and not
so distributed;
(iii) either (x) the Xxxxxx Dispositions shall have been
consummated in accordance with the terms of the letter
agreement dated March 31, 2002, among Agent, Lenders and
Credit Parties, or (y) immediately before and after
giving effect to such distribution, the Fixed Asset
Sublimit shall be an amount less than $3,500,000;
2
(iv) (x) immediately after giving effect to such distribution,
unused availability under the Borrowing Base plus the
aggregate amount of Borrower's remaining cash or Cash
Equivalents, is at least $30,000,000, and (y) after
giving pro forma effect thereto, unused availability
under the Borrowing Base plus the aggregate amount of
Borrower's remaining cash or Cash Equivalents, in each
case on each day during the thirty (30) day period
immediately preceding such distribution is at least
$30,000,000; and
(v) such distribution may not be made with proceeds of Loans,
to the extent that immediately before and after giving
effect to such distribution, the aggregate amount of
Borrower's cash and Cash Equivalents are greater than
$3,000,000.
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective as of
the date hereof upon satisfaction in full of both of the following conditions:
(a) Agent shall have received a copy of this Amendment, duly executed
and delivered by Borrower, Agent and the Majority Lenders; and
(b) Agent shall have received in immediately available funds for the
ratable account of the Lenders which execute and deliver a counterpart of
this Amendment, a nonrefundable amendment fee in an amount equal to
$100,000.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. BORROWER HEREBY REPRESENTS
AND WARRANTS TO AGENT AND EACH OF THE LENDERS THAT, AFTER GIVING EFFECT TO THIS
AMENDMENT:
4.1 All representations and warranties contained in the Credit
Agreement and the other Credit Documents, in each case as amended or
otherwise modified hereby, are true and correct in all material respects on
and as of the date of this Amendment, in each case as if then made, other
than representations and warranties that expressly relate solely to an
earlier date (in which case such representations and warranties remain true
and correct in all material respects on and as of such earlier date, except
for changes therein expressly permitted by the Credit Agreement);
4.2 No Default or Event of Default has occurred which is continuing;
4.3 This Agreement and the Credit Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their respective terms,
except as such enforceability may be limited by (i) the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and (ii) general principles of
equity; and
4.4 The execution and delivery of this Agreement and the other Credit
Documents contemplated hereby (i) does not and will not contravene,
conflict with, violate or constitute a default under the certificate of
incorporation or bylaws of any
3
Credit Party, or any applicable law, rule, regulation, judgment, decree or
order or any agreement, indenture or instrument to which any Credit Party
is a party or is bound or which is binding upon or applicable to all or any
portion of any Credit Party's property, and (ii) does not require the
consent or approval of any Person, except for any such consents or
approvals which have been obtained and remain in full force and effect.
5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS; REAFFIRMATION.
5.1 Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import, and each reference in each of the other Credit
Documents to the "Credit Agreement" shall in each case mean and be a
reference to the Credit Agreement as amended hereby.
5.2 Except as expressly set forth herein, (i) the execution and
delivery of this Amendment shall in no way affect any of the respective
rights, powers or remedies of Agent or any of the Lenders with respect to
any Default or Event of Default nor constitute a waiver of any provision of
the Credit Agreement or any of the other Credit Documents and (ii) all of
the respective terms and provisions of the Credit Agreement, the other
Credit Documents and all other documents, instruments, amendments and
agreements executed and/or delivered by Borrower pursuant thereto or in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed in all respects. The execution and delivery of this
Amendment by Agent and the respective Lenders shall in no way obligate
Agent or any of the Lenders, at any time hereafter, to consent to any other
amendment or modification of any term or provision of the Credit Agreement
or any of the other Credit Documents, whether of a similar or different
nature.
5.3 Borrower (and each other Credit Party which executed an
acknowledgement hereof, by such execution), in its respective capacities
under the each of the Credit Documents to which it is a party (including
the capacities of obligor, grantor, mortgagor, pledgor, guarantor,
indemnitor and assignor, as applicable, and each other similar capacity, if
any, in which such Credit Party has granted Liens on all or any part of the
properties or assets such Credit Party, or otherwise acts as an
accommodation party, guarantor, indemnitor or surety with respect to all or
any part of the Obligations), hereby (a) agrees that the terms and
provisions hereof shall not affect in any way any payment, performance,
observance or other obligations or liabilities of such Credit Party under
the Credit Agreement or any of the other Credit Documents, all of which
obligations and liabilities shall remain in full force and effect and
extend to the further loans, extensions of credit and other Obligations
provided for thereunder, and each of which obligations and liabilities are
hereby ratified, confirmed and reaffirmed in all respects; (b) to the
extent such Credit Party has granted Liens on any of its properties or
assets pursuant to any of the Credit Documents to secure the prompt and
complete payment, performance and/or observance of all or any part of the
Obligations, acknowledges, ratifies, confirms and reaffirms such grant of
Liens, and acknowledges and agrees that all of such Liens are intended and
shall be deemed and construed to secure to the fullest extent set forth
therein all now existing and hereafter arising Obligations under and as
defined in this Credit Agreement, as amended, restated,
4
supplemented and otherwise modified and in effect from time to time; and
(c) acknowledges and agrees that Agent and each of the Lenders has fully
performed all obligations to the respective Credit Parties.
6. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
7. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. COUNTERPARTS. This Amendment may be executed or otherwise authenticated
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed or otherwise authenticated and
delivered shall be an original, but all of which shall together constitute one
and the same instrument. Any such counterpart which may be delivered by
facsimile, email or similar electronic transmission shall be deemed the
equivalent of an original counterpart and shall be fully admissible in any
enforcement proceedings regarding this Amendment.
- Remainder of Page Intentionally Left Blank -
[Signature Page Follows]
5
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment
No. 1 to Credit Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the date first set forth above.
XXXXXXXX'X OPERATING CO., a Delaware
corporation, as Borrower
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: President
DEUTSCHE BANK TRUST COMPANY
AMERICAS, a New York banking corporation
formerly known as Bankers Trust Company, in its
individual capacity as a Lender and in its capacity
as Agent
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Director
[signature page to Amendment No. 1 to Credit Agreement with Xxxxxxxx'x Operating
Co.]
GENERAL MOTORS ACCEPTANCE
CORPORATION
By: /s/
------------------------------------
Name:
-----------------------------------
Title: Senior Vice President
[signature page to Amendment No. 1 to Credit Agreement with Xxxxxxxx'x Operating
Co.]
XXXXXX FINANCIAL, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[signature page to Amendment No. 1 to Credit Agreement with Xxxxxxxx'x Operating
Co.]
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
[signature page to Amendment No. 1 to Credit Agreement with Xxxxxxxx'x Operating
Co.]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
[signature page to Amendment No. 1 to Credit Agreement with Xxxxxxxx'x Operating
Co.]
TRANSAMERICA BUSINESS CAPITAL
CORPORATION, a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
ACKNOWLEDGMENT
--------------
Reference is hereby made to that certain Guaranty dated as of September 29,
2000, executed by the undersigned, XXXXXXXX'X, INC., a Delaware corporation
("Holdings"), in favor of DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York
banking corporation formerly known as Bankers Trust Company, acting in its
capacity as Agent for the Lenders from time to time under the Credit Agreement
referred to in the foregoing Amendment No. 1 to Credit Agreement (the
"Amendment").
Holdings hereby (i) acknowledges receipt of a copy of the Amendment and
(ii) agrees that the terms and provisions thereof shall not affect in any way
the obligations and liabilities of Holdings under the Guaranty or any of the
other Credit Documents, all of which obligations and liabilities shall remain in
full force and effect and each of which are hereby reaffirmed.
XXXXXXXX'X, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Controller
Dated as of May __, 2002
ACKNOWLEDGMENT
--------------
Reference is hereby made to that certain Guaranty dated as of September 29,
2000, executed by the undersigned, XXXXXXXX'X REAL ESTATE HOLDINGS, INC., a
Delaware corporation ("Holdings"), in favor of DEUTSCHE BANK TRUST COMPANY
AMERICAS, a New York banking corporation formerly known as Bankers Trust
Company, acting in its capacity as Agent for the Lenders from time to time under
the Credit Agreement referred to in the foregoing Amendment No. 1 to Credit
Agreement (the "Amendment").
Holdings hereby (i) acknowledges receipt of a copy of the Amendment and
(ii) agrees that the terms and provisions thereof shall not affect in any way
the obligations and liabilities of Holdings under the Guaranty or any of the
other Credit Documents, all of which obligations and liabilities shall remain in
full force and effect and each of which are hereby reaffirmed.
XXXXXXXX'X REAL ESTATE HOLDINGS
INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Controller
Dated as of May __, 2002
