THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT the "Amendment"), dated as of September 30, 2004 is among
XXXXXXXXX XXXXX, INC., a Delaware Corporation (the "Borrower"), the banks
listed on the signature pages hereto (the "Banks"), JPMORGAN CHASE BANK, as
the administrative agent (the "Administrative Agent"), and FLEET NATIONAL
BANK (the "Collateral Agent").
RECITALS:
A. The Borrower, the Administrative Agent, the Collateral Agent
and the banks party thereto have entered into that certain Second Amended and
Restated Credit Agreement dated as of December 24, 2002 (as the same has been
modified by that certain First Amendment to Second Amended and Restated
Credit Agreement dated February 25, 2004, that certain Second Amendment to
Second Amended and Restated Credit Agreement dated June 2, 2004 and as the
same may hereafter be amended or otherwise modified from time to time, the
"Agreement").
B. The Borrower and the Guarantors has requested that the Agents
and the Banks amend certain provisions of the Agreement and the
administrative Agent, the Collateral Agent, and the Banks have agreed to do
so on and subject to the terms set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows effective
as of the date hereof unless otherwise indicated:
ARTICLE I.
Definitions
Section 1.1. Definitions. Capitalized terms used in this
Amendment, to the extent not otherwise defined herein, shall have the same
meanings as in the Agreement, as amended hereby.
ARTICLE II.
Amendments
Section 2.1. Amendment to Existing Definitions in Section 1.01.
The following definitions contained in Section 1.01 of the Agreement are
amended in their respective entireties to read as follows:
"Acquisition" means: (a) the purchase or acquisition of all or
substantially all of the assets of any Person, any division, branch or
business of any Person or any product line of any Person; (b) the purchase of
a controlling equity interest in any Person; or (c) the merger or
consolidation of any Person with any other Person, in each case set forth in
clauses (a), (b) or (c), in any single transaction or in any group of related
transactions which are part of a common plan.
"Applicable Margin" means, with respect to either Type of Loan, the
applicable margin (expressed in basis points) in the column below for the
applicable Type of Loan and opposite the Debt Service Pricing Ratio set forth
in the table below that corresponds with the actual Debt Service Pricing
Ratio set forth in the most recent Compliance Certificate:
Base
Tier Debt Service Pricing Ratio LIBOR Loans Rate Loans
----- ----------------------------------- ----------- ----------
I Greater than 3.50:1.00 150.0 0.0
II Less than or equal to 3.50:1.0 but
greater than 2.75:1.00 175.0 0.0
III Less than or equal to 2.75:1.00 but
greater than 1.75:1.00 200.0 25.0
IV Less than or equal to 1.75:1.00 225.0 50.0
Each Applicable Margin shall be determined by reference to Tier II for the
period from September 30, 2004 until the first business day of the month
following the day when the Compliance Certificate required in connection with
the quarterly financial statements for the fiscal quarter ended September 30,
2004 is delivered. On such date, each Applicable Margin shall change in
accordance with the Debt Service Pricing Ratio set forth therein and the
table set forth above. Thereafter, each Applicable Margin shall change
effective commencing on the first business day of the month following the
date when a quarterly Compliance Certificate required by Section 5.01(c) is
delivered, such change to be made in accordance with the Debt Service Pricing
Ratio set forth therein and the table set forth above; provided, however, if
any Compliance Certificate is not received by the date required by Section
5.01(c), the Applicable Margins shall revert to Tier IV until delivery of the
next Compliance Certificate.
"Change of Control" shall mean the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Borrower and
its Subsidiaries taken as a whole to any "person" (as such term is used in
Section 13(d)(3) of the Exchange Act) other than the Principals or their
Related Parties, (ii) the adoption of a plan relating to the liquidation or
dissolution of the Borrower, (iii) the consummation of any transaction or
series of transactions (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as defined above)
becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act), directly or indirectly, of (a) 35% or
more of the voting Capital Interests of the Borrower and (b) more of the
voting Capital Interests of the Borrower than are, in the aggregate,
beneficially owned by the Principals and their Related Parties at the
time of such consummation, or (iv) the first day on which a majority of the
members of the Board of Directors of the Borrower are not Continuing
Directors. For purposes of this definition, any transfer of an equity
interest of an entity that was formed for the purpose of acquiring voting
Capital Interests of the Borrower shall be deemed to be a transfer of such
portion of such voting Capital Interests as corresponds to the portion of the
equity of such entity that has been transferred.
"Commitment Fee Rate" means the commitment fee rate (expressed in
basis points) set forth in the column below entitled "Commitment Fee Rate"
and opposite the Debt Service Pricing Ratio set forth in the table below that
corresponds with the actual Debt Service Pricing Ratio set forth in the most
recent Compliance Certificate:
Tier Debt Service Pricing Ratio Commitment Fee Rate
----- ----------------------------------- --------------------
I Greater than 3.50:1.00 25.0
II Less than or equal to 3.50:1.00 but 30.0
greater than 2.75:1.00
III Less than or equal to 2.75:1.00 but 37.5
greater than 1.75:1.00
IV Less than or equal to 1.75:1.00 37.5
The Commitment Fee shall be determined by reference to Tier II for the period
from September 30, 2004 until the first business day of the month following
the day when the Compliance Certificate required in connection with the
quarterly financial statements for the fiscal quarter ended September 30,
2004 is delivered. On such date, the Commitment Fee shall change in
accordance with the Debt Service Pricing Ratio set forth therein and the
table set forth above. Thereafter, the Commitment Fee Rate shall change
effective commencing on the first business day of the month following the
date when a quarterly Compliance Certificate required by Section 5.01(c) is
delivered, such change to be made in accordance with the Debt Service Pricing
Ratio set forth therein and the table set forth above; provided, however, if
any Compliance Certificate is not received by the date required by Section
5.01(c), the Commitment Fee Rate shall revert to Tier IV until delivery of
the next Compliance Certificate.
"Indentures" shall mean collectively, the Indenture dated as of May
13, 1997, between the Borrower and Marine Midland Bank, as trustee relating
to the 10 3/8% Senior Notes due 2007, the Indenture dated April 27, 1998,
between the Borrower and Marine Midland Bank, as trustee, relating to the 10
3/8% Senior Notes due 2007, the Indenture dated as of January 23, 2001 among
the Borrower, certain other parties and HSBC Bank USA as trustee relating to
the 11 3/4% Senior Secured Notes due 2011 and the Indenture dated as of
January 13, 2004 among the Borrower, the Guarantors and HSBC Bank USA as
trustee relating to the 7 3/4% Senior Subordinated Notes due 2014. To the
extent that any terms defined in an Indenture are incorporated herein as
therein defined, such definitions shall be incorporated herein as set forth
in such Indenture on the date hereof, without giving effect to any amendment
or other modification thereto unless modified for purposes of such
incorporation, with the consent of the Required Banks.
"Permitted Acquisition" means an Acquisition in which each of the
following conditions are satisfied:
(i) No Default then exists or would arise from the
consummation of such Acquisition.
(ii) Such Acquisition shall have been approved by the
Board of Directors of the Person (or similar governing body if such Person is
not a corporation) which is the subject of such Acquisition and such Person
shall not have announced that it will oppose such Acquisition or shall not
have commenced any action which alleges that such Acquisition will violate
applicable law.
(iii) The Borrower shall have furnished the Administrative
Agent prior notice of such intended Acquisition immediately following
approval by its Board of Directors and shall have furnished the
Administrative Agent with such information regarding the proposed Acquisition
as the Administrative Agent reasonably requested so long as such information
is readily available.
(iv) Any assets acquired shall be utilized in, and if the
Acquisition involves a merger, consolidation or stock acquisition, the Person
which is the subject of such Acquisition shall be engaged in, the same
general type of business as now conducted by the Borrower or its
Subsidiaries.
(v) Either (A) the sum of the total consideration paid
for all Acquisitions consummated since September 30, 2004 other than the
Acquisitions completed under the permissions of the following subclause (B)
plus the total consideration proposed to be paid for the Acquisition in
question does not exceed $35,000,000 or (B) no earlier than 30 days prior to
the anticipated closing of the Acquisition, the Borrower delivers to the
Administrative Agent a certificate which demonstrates compliance with the
following test and shows in reasonable detail satisfactory to the
Administrative Agent the good faith estimate required thereby:
(I) if the Acquisition is consummated during the
period from and including May 16 to and including November 15, then the sum
of the following, as reasonably estimated by the Borrower in good faith, must
equal or exceed $25,000,000: (1) the sum of the balances of the Borrower's
domestic cash, domestic cash equivalents and Borrowing Base Capacity as of
the anticipated closing date; minus (2) the total cash consideration to be
paid for the Acquisition in question;
(II) if the Acquisition is consummated during the
period from and including November 16 to and including May 15, then the sum
of the following, as reasonably estimated by the Borrower in good faith, must
equal or exceed $40,000,000: (1) the sum of the balances of the Borrower's
domestic cash, domestic cash equivalents and Borrowing Base Capacity as of
the anticipated closing date; minus (2) the total cash consideration to be
paid for the Acquisition in question;
(vi) The ratio of pro forma Cash Flow to pro forma Debt
Service is more than 1.35 to 1.00, computed in each case: (A) for the
Borrower and its Consolidated Subsidiaries on a consolidated basis, (B) in
accordance with GAAP; (C) as of the end of the most recently ended fiscal
quarter prior to the date of the proposed Acquisition for the four fiscal
quarters then ended; (D) as if the Acquisition occurred on the first day of
such period; and (E) including in Cash Flow and Debt Service in a manner
acceptable to the Administrative Agent, the Cash Flow and Debt Service of the
Person to be acquired or attributable to the assets to be acquired, as the
case may be; and
(vii) No sooner than five days prior to the date of the
closing of the proposed Acquisition, the Borrower shall have delivered to the
Administrative Agent a certificate which shall certify compliance with the
forgoing clauses (i) through (iv) and (vi) and shall show in reasonable
detail the calculation required by clause (vi).
"Primary Licensing Agreement" means the Licensing Agreement between
The Xxxxxxxxx Xxxxxx Cosmetics Company and Xxxxxxxxxxx Ponds, Inc. dated
February 14, 1986, as amended January 26, 1989, March 20, 1990, June 28,
1990, August 3, 1999, October 26, 2000, July 26, 2001 and March 31, 2003.
"Termination Date" means June 30, 2009.
Section 2.2. Deletion of Definition. The definition of the term
"Consolidated Total Debt/EBITDA Ratio" is deleted from Section 1.01 of the
Agreement.
Section 2.3. Addition of Definitions. The following definitions
are added to Section 1.01 of the Agreement in proper alphabetical order.
"Capital Interests" means:
(i) in the case of a corporation, corporate stock;
(ii) in the case of an association or other business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(iii) in the case of a partnership, partnership interests
(whether general or limited); and
(iv) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors who (i) was a member of
such Board of Directors on January 23, 2001 or (ii) was nominated for
election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.
"Principals" means Xxxxxxx Xxxxxx, E. Xxxxx Xxxxxxx, X. X.
Xxxxx Xxxxxx, Xxxx Xxxxxx, and Xxxxxxx X. X. Xxxxxx.
"Related Party" with respect to any Principal means (i) any
spouse or immediate family member of such Principal or (ii) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Person,
referred to in the immediately preceding clause (i).
Section 2.4. Amendment to Clause (c) of the Definition of
"Borrowing Base". Clause (c) of the definition of "Borrowing Base" contained
in Section 1.01 of the Agreement is amended in its entirety to read as
follows:
(c) Eligible Finished Goods Inventory; Unpackaged. The
lesser of:
(i) the product of the percentage set forth in either
clause (A) or (B) below which is applicable as of the date of determination
multiplied by the aggregate amount of all Eligible Finished Goods Inventory
and Eligible Arden Finished Goods Inventory, in each case, which have not
been packaged for delivery to a customer and valued based on the lower of
cost or market value:
(A) In Season. if the date of determination is
during the period from and including May 16 to and including November 15,
seventy-five percent (75%); and
(B) Out of Season. if the date of determination
is during the period from and including November 16 to and including May 15,
sixty-five percent (65%); or
(ii) eighty-five percent (85%) of the product of the
Appraised Liquidation Percentage multiplied by the gross cost of all finished
goods inventory of Borrower which has not been packaged for delivery to a
customer; plus
Section 2.5. Other Amendment to the Definition of "Borrowing
Base". The last sentence of the definition of the term "Borrowing Base" is
amended in its entirety and a new sentence is added thereafter, in each case
to read as follows:
No Accounts or Inventory acquired in a Permitted Acquisition
or arising from a business acquired in a Permitted Acquisition shall be
included in the Borrowing Base unless and until the Administrative Agent
shall be satisfied that the manner of calculating the Borrowing Base as
herein set forth is appropriate for the assets and business acquired;
provided that for the sole purpose of determining compliance with the test
under clause (v) (A) and (B) of the definition of the term "Permitted
Acquisition" (and not otherwise), such Accounts and Inventory which satisfy
the eligibility requirements hereunder may be included in the Borrowing Base
for purposes of the calculation of Average Borrowing Base Capacity under such
test. The Administrative Agent shall make the determination of whether
Accounts and Inventory acquired in a Permitted Acquisition or arising from a
business acquired in a Permitted Acquisition shall be included in the
Borrowing Base as promptly as reasonably possible after receiving a request
to do so from the Borrower and after receipt of all collateral audits and
appraisals conducted with respect to such Accounts and Inventory as
reasonably requested by the Administrative Agent considering, among other
factors, the materiality of the Acquisition and the relative similarity of
the Accounts or Inventory to the Accounts and Inventory already included in
the Borrowing Base.
Section 2.6. Amendment to Definition of the Term "Eligible
Accounts Receivable." The definition of the term "Eligible Accounts
Receivable" is amended to delete therefrom in each place they appears the
words "Eckerd Drugs, Inc."
Section 2.7. Amendment to Section 2.11(b)(ii). Section
2.11(b)(ii) of the Agreement is amended in its entirety to read as follows:
(ii) The Borrower shall make a prepayment/repayment of
the Loans in the amount of 100% of Net Proceeds from the issuance of equity
or debt other than Net Proceeds from any such issuance that are: (A) used for
a Permitted Refinancing; or (B) used within two business days of the date of
receipt to fund a Permitted Acquisition; and
Section 2.8. Amendment to Section 5.01(b) and (c). Sections
5.01 (b) and (c) of the Agreement are each amended in their respective
entireties to read as follows:
(b) as soon as available and in any event within forty-
five (45) days after the end of each of the first three quarters of each
fiscal year of the Borrower, a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such quarter, the related
consolidated statement of stockholders' equity as of such fiscal quarter end
and the related consolidated statements of operations and cash flows for the
portion of the Borrower's fiscal year ended at the end of such quarter;
setting forth in comparative form the figures for the corresponding quarter
or the corresponding portion of the Borrower's previous fiscal year (as the
case may be), all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the principal financial officer or principal accounting
officer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a certificate
of the principal financial officer or the principal accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the requirements of
Section 5.19 of this Agreement on the date of such financial statements, (ii)
setting forth in reasonable detail the calculations required to establish the
Debt Service Pricing Ratio in order to determine the Applicable Margin,
Applicable Letter of Credit Fee and the Commitment Fee Rate for the upcoming
fiscal quarter, (iii) stating whether any Default exists hereunder on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto, (iv) stating whether, since the date of the most
recent financial statements previously delivered pursuant to this Section,
there has been any material change in the generally accepted accounting
principles applied in the preparation of such statements, and, if so,
describing such change and (v) stating whether there is any Material
Subsidiary that is required to be a Guarantor but currently is not a
Guarantor;
Section 2.9. Amendment to Section 5.01(e) and (f). Section
5.01 (e) and (f) of the Agreement are each amended in their respective
entireties to read as follows:
(e) within thirty (30) days after the end of each month,
a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such month, the related consolidated statement
of stockholders' equity as of the end of such month and the related
consolidated statements of operations and cash flows for such month and for
the portion of the Borrower's fiscal year ended at the end of such month,
setting forth in each case in comparative form the figures for the
corresponding month and the corresponding portion of the Borrower's previous
fiscal year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by one of the principal financial officers of the Borrower;
(f) a Borrowing Base Certificate together with an
accounts receivable aging report (reflecting all journal entries and
adjustments including all customer credits and debits), a report showing all
amounts payable by the Borrower to the account debtors whose accounts
receivable are included in the Borrowing Base, a collections report, a sales
report and lockbox statements all certified by one of the Borrower's
principal financial officers: (i) within fifteen (15) days after the end of
each month, with the Borrowing Base Certificate and reports being prepared as
of the last day of such month, (ii) during the period from and including May
16 to and including November 15, on Tuesday of each week, with the Borrowing
Base Certificate and reports being prepared as of the immediately preceding
Saturday; provided that between any May 16 and June 16, the Agent may agree
that the Borrower is only required to deliver a Borrowing Base Certificate on
June 15 prepared as of immediately preceding May 31 if, after the Borrower's
request, it determines to do so in its sole discretion (without the consent
or agreement of any Bank), and (iii) if a Default exists, within three days
after any other date requested by the Administrative Agent with the Borrowing
Base Certificate and such reports being prepared as of the date of the
request;
Section 2.10. Amendment to Section 5.01(g). Clause (g) of
Section 5.01 of the Agreement is amended in its entirety to read as follows:
(g) within fifteen (15) days after the end of each month,
a report, in the form acceptable to the Administrative Agent, setting forth
in reasonable detail the location and dollar amount of the inventory of the
Borrower and the Subsidiaries as of the last day of the month, certified by
one of the Borrower's principal financial officers as of the end of such
month;
Section 2.11. Amendment to Section 5.01(n). Clause (n) of
Section 5.01 of the Agreement is amended in its entirety to read as follows:
(n) within thirty (30) days after the end of each month,
the following reports: (i) financial comparison of month to date and year to
date performance of the Borrower to prior year results and current year's
budget; (ii) a listing of the top ten concentration for accounts receivable
and accounts payable; (iii) a listing of the balance of inter-company loans
to the Foreign Subsidiaries; (iv) consolidating profit and loss statement
(domestic/international); and (v) SBU (i.e., strategic business unit)
analysis of sales, EBITDA and gross margin.
Section 2.12. Amendment to Section 5.12. Section 5.12 of
the Agreement is amended in its entirety to read as follows:
Section 5.12 Use of Proceeds and Letters of Credit.
Except as otherwise permitted herein, the proceeds of the Loans (including
Letters of Credit) will be used for on-going working capital requirements of
the Borrower and its Subsidiaries. Letters of Credit will be issued only as
(a) documentary Letters of Credit used only to support obligations of the
Borrower or any Subsidiary (other than a Foreign Subsidiary) related to the
purchase of Inventory in the ordinary course of business or (b) standby
Letters of Credit used to support other obligations of the Borrower or any
Subsidiary. None of such proceeds of the Loans will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any Margin Stock.
Section 2.13. Amendment to Section 5.14. Clause (d) of
Section 5.14 of the Agreement is amended in its entirety to read as follows:
(d) as long as no Event of Default exists and is
continuing, Dividends (in addition to those otherwise permitted by this
Section) by the Borrower; provided that the aggregate amount of Dividends
paid under the permissions of this clause (d) shall not exceed $5,000,000 for
the period from September 30, 2004 through the Termination Date.
Section 2.14. Amendment to Section 5.19. Section 5.19 of
the Agreement is amended in its entirety to read as follows:
Section 5.19 Minimum Quarterly Consolidated Debt
Service Coverage Ratio. If Average Borrowing Base Capacity (as defined
below) is equal to or less than (i) $25,000,000 as of any fiscal quarter
ended during the period from and including May 16 to and including November
15 or (ii) $40,000,000 as of any fiscal quarter ended during the period from
and including November 16 to and including May 15, the Borrower will not
permit the ratio of Cash Flow to Debt Service to be less than 1.10 to 1.00,
computed in each case for the Borrower and its Consolidated Subsidiaries on a
consolidated basis in accordance with GAAP as of the end of such fiscal
quarter for the preceding twelve months. As used in this Section 5.19, the
following terms shall have the following meanings:
"Cash Flow" means, for any period, the sum of (i)
Consolidated EBITDA minus (ii) Capital Expenditures which were not financed
with Indebtedness permitted under clauses (viii), (ix) or (x) of the
definition of Permitted Indebtedness; minus (iii) all income and franchise
taxes paid in cash.
"Debt Service" means, for any period, the sum of (i)
Consolidated Net Interest Expense plus (ii) regularly scheduled principal
payments made in respect of Indebtedness during such period plus (iii) all
cash Dividends paid during such period.
"Average Borrowing Base Capacity" means, as of any date of
determination, an amount equal to the average of the daily balances of the
sum of the Borrower's domestic cash, domestic cash equivalents and Borrowing
Base Capacity for the thirty day period ending on the date of calculation.
"Borrowing Base Capacity" means, on any date, an amount
equal to the Borrowing Base in effect on such date minus the Committed
Exposure on such date.
Section 2.15. Amendment to Section 5.20. Section 5.20 of
the Agreement entitled "Minimum Availability" is deleted.
Section 2.16. Amendment to Clause (d) of Section 5.21.
Clause (d) of Section 5.21 of the Agreement is amended in its entirety to
read as follows:
(d) any prepayment, purchase, redemption, or other
acquisition of any of the Permitted Indebtedness (each a "Prepayment") from
the Net Proceeds of an equity offering; and
Section 2.17. Amendment to Clause (e)(ii) of Section 5.21.
Clause (e)(ii) of Section 5.21 of the Agreement is amended in its entirety to
read as follows:
(ii) if the Prepayment is made:
(A) during the period from and including May 16 to and
including November 15, then the sum of the following must equal or exceed
$25,000,000 as of the date of calculation (which date must not be more than
30 days prior to the date of the Prepayment): (x) the most recent Borrowing
Base in effect on the calculation date; minus (y) the Committed Exposure on
the calculation date; minus (z) the amount of the Prepayment; or
(B) during the period from and including November 16 to
and including May 15, then the sum of the following must equal or exceed
$40,000,000 as of the date of calculation (which date must not be more than
30 days prior to the date of the Prepayment): (x) the most recent Borrowing
Base in effect on the calculation date; minus (y) the Committed Exposure on
the calculation date; minus (z) the amount of the Prepayment; and
Section 2.18. Amendment to Section 6.01. Clause (f) of
Section 6.01 of the Agreement is amended in its entirety to read as follows:
(f) any event or condition shall occur which results in
the acceleration of the maturity of any Material Debt or enables (or, with
the giving of notice or lapse of time or both, would enable) the holder of
such Material Debt or any Person acting on such holder's behalf to accelerate
the maturity thereof or, under circumstances in the nature of a default, to
require the prepayment or repurchase thereof prior to the maturity thereof;
Section 2.19. Amendment to Exhibits. Exhibit C [Form of
Borrowing Base Certificate] and Exhibit E [Form of Compliance Certificate] of
the Agreement are amended in their respective entireties to read as Exhibits
C and E attached hereto.
ARTICLE III.
Conditions Precedent
Section 3.1. Conditions. The effectiveness of Article II of
this Amendment is subject to the satisfaction of the following conditions
precedent:
(a) The Administrative Agent shall have received this
Amendment duly executed by the Borrower, the Guarantors and the Banks;
(b) The receipt by the Administrative Agent of an
arrangement fee on or prior to the effective date of this Amendment pursuant
to its separate agreement with the Borrower executed on the date hereof;
(c) The receipt by each Bank that executes this Amendment
of an upfront fee in an amount equal to 0.10% of the amount of its Commitment
in consideration for such Bank entering into this Amendment;
(d) The representations and warranties contained herein and
in all other Loan Documents, as amended hereby, shall be true and correct in
all material respects as of the date hereof as if made on the date hereof,
except for such representations and warranties limited by their terms to a
specific date;
(e) No Default shall exist; and
(f) All proceedings taken in connection with the
transactions contemplated by this Amendment and all documentation and other
legal matters incident thereto shall be satisfactory to Administrative Agent
and its legal counsel, Jenkens & Xxxxxxxxx, a Professional Corporation.
ARTICLE IV.
Miscellaneous
Section 4.1. Ratifications. The terms and provisions set
forth in this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Agreement and except as expressly modified and
superseded by this Amendment, the terms and provisions of the Agreement, and
the other Loan Documents are ratified and confirmed and shall continue in
full force and effect. The Borrower, the Agents and the Banks agree that the
Agreement as amended hereby and the other Loan Documents shall continue to be
legal, valid, binding and enforceable in accordance with their respective
terms. For all matters arising prior to the effective date of this Amendment,
the Agreement (as unmodified by this Amendment) shall control.
Section 4.2. Representations and Warranties; Release. The
Borrower hereby represents and warrants to the Agents and the Banks as
follows:
(a) no Default exists and (b) the representations and warranties set forth in
the Loan Documents are true and correct on and as of the date hereof with the
same effect as though made on and as of such date except with respect to any
representations and warranties limited by their terms to a specific date. IN
ADDITION, TO INDUCE THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE
BANKS TO AGREE TO THE TERMS OF THIS AMENDMENT, THE BORROWER AND EACH
GUARANTOR (BY ITS EXECUTION BELOW) REPRESENTS AND WARRANTS THAT AS OF THE
DATE OF ITS EXECUTION OF THIS AMENDMENT THERE ARE NO CLAIMS OR OFFSETS
AGAINST OR RIGHTS OF RECOUPMENT WITH RESPECT TO OR DEFENSES OR COUNTERCLAIMS
TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.
Section 4.3. Survival of Representations and Warranties.
All representations and warranties made in this Amendment or any other Loan
Document including any Loan Document furnished in connection with this
Amendment shall survive the execution and delivery of this Amendment, and no
investigation by any Agent or any Bank or any closing shall affect the
representations and warranties or the right of the any Agent or any Bank to
rely upon them.
Section 4.4. Reference to Agreement. Each of the Loan
Documents, including the Agreement and any and all other agreements,
documents, or instruments now or hereafter executed and delivered pursuant to
the terms hereof or pursuant to the terms of the Agreement as amended hereby,
are hereby amended so that any reference in such Loan Documents to the
Agreement shall mean a reference to the Agreement as amended hereby.
Section 4.5. Expenses of Administrative Agent. As provided
in the Agreement, Borrower agrees to pay on demand all reasonable costs and
expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, and execution of this Amendment, including without
limitation, the reasonable costs and fees of the Administrative Agent's legal
counsel provided it sends an invoice to Borrower beforehand and addresses
reasonable questions.
Section 4.6. Severability. Any provision of this Amendment
held by a court of competent jurisdiction to be invalid or unenforceable
shall not impair or invalidate the remainder of this Amendment and the effect
thereof shall be confined to the provision so held to be invalid or
unenforceable.
Section 4.7. Applicable Law. This Amendment shall be
governed by and construed in accordance with the laws of the State of New
York and the applicable laws of the United States of America.
Section 4.8. Successors and Assigns. This Amendment is
binding upon and shall inure to the benefit of the Agents, each Bank, the
Borrower, each Guarantor and their respective successors and assigns, except
neither Borrower nor any Guarantor may assign or transfer any of its rights
or obligations hereunder without the prior written consent of the Banks.
Section 4.9. Counterparts. This Amendment may be executed
in one or more counterparts and on telecopy counterparts, each of which when
so executed shall be deemed to be an original, but all of which when taken
together shall constitute one and the same agreement.
Section 4.10. Effect of Waiver. No consent or waiver,
express or implied, by any Agent or any Bank to or for any breach of or
deviation from any covenant, condition or duty by the Borrower or any
Guarantor shall be deemed a consent or waiver to or of any other breach of
the same or any other covenant, condition or duty.
Section 4.11. Headings. The headings, captions, and
arrangements used in this Amendment are for convenience only and shall not
affect the interpretation of this Amendment.
Section 4.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE
FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS
AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Executed as of the date first written above.
XXXXXXXXX XXXXX, INC., as the Borrower
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President, Finance
JPMORGAN CHASE BANK, individually as a
Bank, an Issuing Bank and as
Administrative Agent
By: /s/ Xxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
FLEET NATIONAL BANK,
as Collateral Agent and a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Senior Vice President
LASALLE BUSINESS CREDIT, L.L.C.,
successor by merger to LaSalle Business
Credit, Inc.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
U.S. BANK BUSINESS CREDIT
(f/n/a Firstar Bank N.A.)
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
(f/n/a First Union National Bank)
By: /s/ Xxxxxx Xxxx
---------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
SIEMENS FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON, Cayman
Island Branch
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
THE PROVIDENT BANK
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Credit Officer
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
CONSENT OF GUARANTORS AND REAFFIRMATION OF LOAN DOCUMENTS
---------------------------------------------------------
Each of the Guarantors consent and agree to this Amendment
(including without limitation, the provisions of Section 4.2 hereof) and
agree that the Loan Documents to which it is a party shall remain in full
force and effect and shall continue to be the legal, valid and binding
obligation of such Guarantor enforceable against it in accordance with their
respective terms.
FD MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
DF ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
XXXXXXXXX XXXXX INTERNATIONAL HOLDING,
INC., (formerly FFI International,
Inc.)
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & Assistant
Treasurer
RDEN MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & Assistant
Treasurer
XXXXXXXXX XXXXX (FINANCING), INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & Assistant
Treasurer
XXXXXXXXX XXXXX TRAVEL RETAIL, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & Assistant
Treasurer
Index of Exhibits
Exhibits
C Form of Borrowing Base Certificate
E Form of Compliance Certificate
