AMENDMENT TO LOAN AGREEMENT
---------------------------
THIS AMENDMENT is made this 29th day of October, 1999, by and between
XXXXX MART, INC. (the "Borrower"), a Florida corporation, BANK OF AMERICA, N.A.,
successor to NationsBank, N.A., successor to Xxxxxxx Bank, N.A. ("Bank of
America"), SUNTRUST BANK, NORTH FLORIDA, N.A. ("SunTrust") and BANK OF AMERICA,
N.A., successor to NationsBank, N.A., successor to Xxxxxxx Bank, N.A. (in such
capacity, and for so long as it shall serve in such capacity hereunder, the
"Agent"), as Agent for Bank of America and SunTrust. Bank of America and
SunTrust are collectively referred to herein as, the "Lenders".
Recitals
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The Borrower, the Lenders and the Agent entered into a Loan Agreement (as
amended from time to time, the "Loan Agreement") dated August 25, 1998, pursuant
to which the Lenders have provided a credit facility to the Borrower. The
parties wish to amend the Loan Agreement in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. Section 1.04 of the Loan Agreement is hereby amended so that, from and
after the date hereof, such section shall read as follows:
1.04 Letters of Credit. Bank of America hereby establishes a letter of
credit facility in an amount not to exceed $5,000,000.00 for the issuance of
standby and commercial letters of credit (the "Letters of Credit"). From time to
time prior to June 30, 2001, Bank of America, upon the Borrower s request, may
issue Letters of Credit. The parties hereto acknowledge that SunTrust will not
participate in the issuance of Letters of Credit hereunder. The Borrower shall
give Bank of America at least one business day's notice prior to requesting the
issuance of any Letter of Credit, and shall, with such request, fill out an
application in form acceptable to Bank of America and execute such terms,
conditions and reimbursement agreements (each, a "Reimbursement Agreement")
concerning such Letter of Credit as Bank of America may require. The amount
available under the letter of credit facility shall be reduced by the face
amount of outstanding Letters of Credit (together with the amount of drafts
under Letters of Credit no longer outstanding for which Bank of America has not
been reimbursed). No Letter of Credit shall be issued which could be drawn on
after the expiration of the Revolving Period. In the event of a draw on a Letter
of Credit, an advance under the Revolving Notes or, if advances are available
thereunder, under the Seasonal Notes, shall be made to the extent that amounts
are then available for borrowing under such notes to reimburse Bank of America
for such draw. If any draw is made under any Letter of Credit after the
expiration of the Revolving Period or if funds are not then available for
advances under such notes, the Borrower shall immediately upon demand reimburse
Bank of America for the amount of the draw together with interest thereon and
such other amounts as may be due under any applicable Reimbursement Agreement.
As to any Letter of Credit issued, the Borrower agrees to pay Bank of America
upon demand any applicable fees quoted by Bank of America on or before the
issuance of the Letter of Credit, including, without limitation, issuance fees
and negotiation fees. Bank of America shall not in any event be required to
issue a Letter of Credit after the occurrence of a Default or Event of Default
hereunder.
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2. The Loan Agreement is hereby amended so that, from and after the date
hereof, all references therein to "Xxxxxxx" shall mean Bank of America, N.A.
3. The Borrower certifies that as of the date hereof: (a) all of its
representations and warranties in the Loan Agreement are true and correct as if
made on the date hereof; and (b) no Default or Event of Default has occurred
under the Loan Agreement. The Loan Agreement shall continue in full force and
effect except as modified herein.
DATED the day and year first above written.
XXXXX MART, INC.
By: /s/ Xxxxx X. Xxxxx
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Its: Senior Vice President - CFO
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BANK OF AMERICA, N.A.,
as agent
By:/s/ Xxxxx Xxxxxxx
----------------------------------
Its: Vice-President
----------------------------------
BANK OF AMERICA, N.A.
By:/s/ Xxxxx Xxxxxxx
----------------------------------
Its: Vice-President
----------------------------------
SUNTRUST BANK, NORTH FLORIDA, N.A.
By:/s/ C. Xxxxxxx Xxxxxxxx
----------------------------------
Its: First Vice-President
----------------------------------
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CONSENT
-------
The undersigned has executed a Guaranty of Payment (the "Guaranty") dated
August 25, 1998, pursuant to which it has guaranteed certain obligations of
Xxxxx Mart, Inc. (the "Borrower") to Bank of America, N.A., successor to
NationsBank, N.A., successor to Xxxxxxx Bank, N.A. ("Bank of America") and
SunTrust Bank, North Florida, N.A. ("SunTrust"). Bank of America and SunTrust
are collectively referred to herein as the "Lenders." The undersigned hereby
consents to the Borrower s execution of an Amendment to Loan Agreement (the
"Amendment") of even date herewith by and between the Borrower and the Lenders.
The undersigned reaffirms its obligations under the Guaranty and agrees that its
obligations under the Guaranty shall not be discharged or otherwise impaired as
a result of the Borrower s execution of the Amendment.
Dated as of October 29th, 1999.
XXXXX MART BUYING CORP.
By:/s/ Xxxxx X. Xxxxx
------------------------------
Its: Senior Vice President-CFO
------------------------------
ACCEPTED:
BANK OF AMERICA, N.A.,
as agent for Lenders
By:/s/ Xxxxx Xxxxxxx
--------------------
Its: Vice-President
--------------------
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OFFICER'S CERTIFICATE
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The undersigned certifies to Bank of America, N.A. and SunTrust Bank, North
Florida, N.A. that:
1. The undersigned is currently serving as Secretary of Xxxxx Mart Buying
Corp. (the "Company"), a Florida corporation.
2. On the date of this Certificate, the persons below are duly qualified
and acting officers of the Company. Each such officer was duly elected or
appointed as an officer by the directors of the Company. The signature opposite
the name of each such officer is his authentic signature.
Name Title Signature
---- ----- ---------
Xxxxx X. Xxxxx Senior Vice President-CFO /s/ Xxxxx X. Xxxxx
------------------- ------------------------- ------------------
3. The Company s Board of Directors or Executive Committee has duly adopted
the resolutions attached hereto as Exhibit "A." Such resolutions have not been
amended or rescinded as of the date of this Certificate.
Dated this 29th day of October, 1999.
Signature:/s/ Xxxxx X. Xxxxx
-------------------------------
Print Name: Xxxxx X. Xxxxx
-------------------------------
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EXHIBIT "A"
RESOLUTIONS
-----------
WHEREAS, Xxxxx Mart, Inc. (the "Company"), Bank of America, N.A., successor
to NationsBank, N.A., successor to Xxxxxxx Bank, N.A. ("Bank of America") and
SunTrust Bank, North Florida, N.A. ("SunTrust") (Bank of America and SunTrust
being collectively referred to herein as, the "Lenders") have entered into that
certain loan agreement (as amended or restated from time to time, the "Loan
Agreement") dated August 25, 1998, pursuant to which the Lenders have provided
certain credit facilities to the Company; and
WHEREAS, the Company has requested that the Lenders amend the terms of the
Loan Agreement;
RESOLVED, that the Company's officers, and each of them, be and they are
hereby authorized and directed to execute and deliver such loan documents as are
necessary to amend the Loan Agreement on such terms and conditions as are
acceptable to such officers, or any of them;
FURTHER RESOLVED, that the Company's officers, or any of them, are hereby
authorized and directed to deliver to the Lenders such corporate papers,
certificates and other papers and documents as may be necessary or proper in
order to consummate the transactions authorized in this and preceding
resolutions; and,
FURTHER RESOLVED, that the execution by the Company's officers, or any of
them, of any documents or instruments authorized by the foregoing resolutions or
any document or instrument executed in the accomplishment of any action or
actions authorized or the execution of any amendment or modification of any such
document or instrument shall be deemed to be conclusive approval thereof by this
Company and the binding act and obligation of this Company.
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OFFICER'S CERTIFICATE
---------------------
The undersigned certifies to Bank of America, N.A. and SunTrust Bank, North
Florida, N.A. that:
1. The undersigned is currently serving as Secretary of Xxxxx Mart, Inc.
(the "Company"), a Florida corporation.
2. On the date of this Certificate, the persons below are duly qualified
and acting officers of the Company. Each such officer was duly elected or
appointed as an officer by the directors of the Company. The signature opposite
the name of each such officer is his authentic signature.
Name Title Signature
----- ----- ---------
Xxxxx X. Xxxxx Senior Vice President-CFO /s/ Xxxxx X. Xxxxx
------------------- -------------------------- ---------------------
3. The Company's Board of Directors or Executive Committee has duly adopted
the resolutions attached hereto as Exhibit "A." Such resolutions have not been
amended or rescinded as of the date of this Certificate.
Dated this 29th day of October, 1999.
Signature: /s/ Xxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxx X. Xxxxx
--------------------------------
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EXHIBIT "A"
RESOLUTIONS
-----------
WHEREAS, Xxxxx Mart Buying Corp. (the "Company") has previously executed a
Guaranty of Payment (as amended or restated from time to time, the "Guaranty"),
dated August 25, 1998, pursuant to which the Company has guaranteed certain
obligations of Xxxxx Mart, Inc. (the "Borrower") to Bank of America, N.A.,
successor to NationsBank, N.A., successor to Xxxxxxx Bank, N.A. ("Bank of
America") and SunTrust Bank, North Florida, N.A. ("SunTrust"), as more
particularly described in the Guaranty; and
WHEREAS, the Borrower is this day entering into an amendment (the
"Amendment") to that certain loan agreement (as amended or restated from time to
time, the "Loan Agreement"), dated August 25, 1998, entered into between the
Borrower, Bank of America and SunTrust;
RESOLVED, that Xxxxx Mart Buying Corp. (the "Company") hereby consents to
the execution of the Amendment between the Borrower, Bank of America and
SunTrust;
FURTHER RESOLVED, that the Company's officers, and each of them, be and
they are hereby authorized and directed to execute and deliver such consents and
such other documents as are necessary to consummate the transactions described
in the preceding paragraph on behalf of the Company and such other instruments
or written obligations that may be required by Bank of America or SunTrust in
connection with the execution of the Amendment containing such terms and
conditions as are acceptable to such officers, or any of them;
FURTHER RESOLVED, that the Company's officers, or any of them, are hereby
authorized and directed to deliver to Bank of America and SunTrust such
corporate papers, certificates and other papers and documents as may be
necessary or proper in order to consummate the transactions authorized in this
and preceding resolutions; and,
FURTHER RESOLVED, that the execution by the Company's officers, or any of
them, of any documents or instruments authorized by the foregoing resolutions or
any document or instrument executed in the accomplishment of any action or
actions authorized or the execution of any amendment or modification of any such
document or instrument shall be deemed to be conclusive approval thereof by this
Company and the binding act and obligation of this Company.
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