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EXHIBIT 10.12
SECOND AMENDMENT
TO SHORT-TERM CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SHORT-TERM 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") and AMSOUTH BANK OF ALABAMA, an Alabama banking corporation (the
"Lender").
RECITALS
A. The Borrowers and the Lender have heretofore entered into a
Short-Term Credit Agreement dated as of October 27, 1995, (the "Credit
Agreement") whereby the Lender made available to the Borrowers a revolving
credit facility in an aggregate principal amount outstanding not to exceed
$10,000,000 (the "Revolving Facility"), the proceeds of which were to be used by
the Borrowers for general corporate purposes.
B. The Borrowers and the Lender entered thereafter into a First
Amendment to Short-Term Credit Agreement dated as of November 1, 1996, (the
"First Amendment") whereby the Lender increased the Maximum Credit Amount of the
Revolving Facility to an amount not to exceed $20,000,000 and extended the
Termination Date of the Revolving Facility until June 30, 1997. The Credit
Agreement and the First Amendment shall be collectively referred to as the
"Agreement."
B. The Borrowers have applied to the Lender for an extension of the
Termination Date of the Revolving Facility until June 3, 1998 and for a
reduction in the Maximum Credit Amount of the Revolving Facility to an amount
not to exceed $10,000,000, the proceeds of which will continue to be used by the
Borrowers for general corporate purposes.
C. The Borrowers and the Lender wish to amend the Agreement as
requested by the Borrowers and as further set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and the mutual
obligations and covenants contained herein, the Borrowers and the Lender 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 "Maximum Credit Agreement" set forth in Article I
of the Agreement is hereby deleted in its entirety.
3. The defined term "Maximum Credit Amount" is added to Article I of
the Agreement and shall read as follows:
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"Maximum Credit Amount shall mean Ten Million and No/100 Dollars
($10,000,000.00)."
4. The defined term "Revolving Facility" set forth in Article I of the
Agreement is hereby amended to read, in its entirety, as follows:
"Revolving Facility shall mean the credit facility made
available to the Borrowers by the Lender under the terms of Article 2
in an aggregate amount of $10,000,000 as may be reduced by the
Borrowers pursuant to Section 2.6 hereof."
5. The defined term "Termination Date" set forth in Article I of the
Agreement is hereby amended to read, in its entirety, as follows:
"Termination Date" means June 3, 1998, as the same may be
extended from time to time in accordance with Section 2.7 hereof."
6. Section 5.8 set forth in Article 5 is hereby amended to read, in its
entirety, as follows:
SECTION 5.8 ERISA.
(a) Prohibited Transactions. The execution and delivery of
this Agreement and the issuance and delivery of the Note 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
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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.
7. The reference to the figure "$20,000,000" as it refers to the
defined term "Note" in Section 2.1(a) of the Agreement is hereby amended to
refer instead to the figure "$10,000,000."
8. Notwithstanding the execution of this Amendment, all of the
indebtedness evidenced by the Note shall remain in full force and effect, as
modified hereby, nothing contained in this Amendment shall be construed to
constitute a novation of the indebtedness evidenced by the Note 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
the Note; (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 the Note 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.
9. 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.
10. The Borrowers hereby certify that the organizational documents of
the Borrowers have not been amended since October 27, 1995.
11. 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.
12. 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.
13. 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 expressly waived, acknowledged or consented
to previously by the Lender in writing.
14. This Amendment shall be governed by the laws of the State of
Alabama.
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[Signatures on following pages]
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IN WITNESS WHEREOF, each of the Borrowers and the Lender 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
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Its Executive Vice President
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AMERICAN WHOLESALE BOOK COMPANY,
INC.
By:/s/ Xxxxxx X. Xxxxxxx
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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
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Its Senior Vice President
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Hand Delivery Address:
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
