EXHIBIT 10.9.3
EXECUTION COPY
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of March 24, 2003
(this "Amendment"), is among XXXX-XXXXX STORES, INC. (the "Borrower"), the
Lenders (as defined below) signatories hereto and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as First Union National Bank), in its capacity as
Administrative Agent for the Lenders (such capitalized term and all other
capitalized terms not defined herein to have the meanings set forth in the
Existing Credit Agreement (as defined below)).
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions and other
Persons (such capitalized term and other capitalized terms used in these
recitals to have the meanings set forth or defined by reference in Part I below)
from time to time parties thereto (collectively, the "Lenders"), the
Administrative Agent, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx and
Xxxxx Incorporated ("ML & Co."), as the Syndication Agent, Xxxxxx Trust and
Savings Bank, Fleet National Bank and Credit Lyonnais New York Branch, as the
Documentation Agents, and Wachovia Securities, Inc. and ML & Co., as joint lead
arrangers, are parties to the Credit Agreement, dated as of March 29, 2001 (as
modified prior to the date hereof by the First Amendment dated as of March 14,
2002, and the Second Amendment dated as of May 3, 2002, the "Existing Credit
Agreement");
WHEREAS, the Borrower has requested that the Lenders amend the
Existing Credit Agreement as set forth below; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement in certain
respects (the Existing Credit Agreement, as so amended or otherwise modified by
this Amendment, being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"Third Amendment Effective Date" is defined in Subpart 3.1.
"Lenders" is defined in the first recital.
"ML & Co." is defined in the first recital.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part; except as so amended or otherwise modified by this Amendment,
the Existing Credit Agreement and the Loan Documents shall continue in full
force and effect in accordance with their terms.
SUBPART 2.1. Amendment to Article I. Article I of the Existing Credit
Agreement is hereby amended in accordance with Subparts 2.1.1 through 2.1.4.
SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions therein in the appropriate
alphabetical order:
"Third Amendment" means the Third Amendment, dated as of March 24,
2003, to this Agreement among the Borrower, the Administrative Agent and
the Lenders parties thereto.
"Third Amendment Effective Date" is defined in Subpart 3.1 of the
Third Amendment.
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is hereby
further amended by amending the definition of "364 Day Revolving Loan Commitment
Amount" appearing therein by deleting the reference to "$200,000,000" appearing
therein and inserting a reference to "$100,000,000" in replacement therefor.
SUBPART 2.1.3. Section 1.1 of the Existing Credit Agreement is hereby
further amended by amending the definition of "Letter of Credit Commitment
Amount" appearing therein by deleting the reference to "$60,000,000" appearing
therein and inserting a reference to "$100,000,000" in replacement therefor.
SUBPART 2.1.4. Section 1.1 of the Existing Credit Agreement is hereby
further amended by amending the definition of "Stated Maturity Date" appearing
therein by deleting the reference to "March 27, 2003" appearing in clause (c)
therein and inserting a reference to "March 25, 2004" in replacement therefor.
SUBPART 2.2. Amendment to Article II. Article II of the Existing
Credit Agreement is hereby amended in accordance with Subpart 2.2.1.
SUBPART 2.2.1. Section 2.3.1 of the Existing Credit Agreement is
hereby amended and restated to read in its entirety as follows:
"SECTION 2.3.1. Borrowing Procedure. In the case of Loans other than
Swing Line Loans, by delivering a Borrowing Request to the Administrative
Agent on or before12:00 noon (New York time) on a Business Day, the
Borrower may from time to time irrevocably request, on the same day as the
proposed Borrowing in the case of Base Rate Loans, or three Business Days'
notice in the case of LIBO Rate Loans, and in either case not more than
five Business Days' notice, that a Borrowing be made, in the case of LIBO
Rate Loans, in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000, in the case of Base Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $500,000 or, in either case, in the
unused amount of the applicable Commitment. On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the type
of Loans, and shall be made on the Business Day, specified in such
Borrowing Request. In the case of LIBO Rate Loans, on or before 11:00
a.m.(New York time), and in the case of Base Rate Loans other than Swing
Line Loans, on or before 3:00 p.m. (New York time), on such specified
Business Day each Lender that has a Commitment to make the Loans being
requested shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
available to the Borrower by wire transfer to the accounts the Borrower
shall have specified in its Borrowing Request. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to make any
Loan."
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effectiveness. This Amendment and the amendments
contained herein shall become effective on the date (the "Third Amendment
Effective Date") when each of the conditions set forth in this Part shall have
been fulfilled to the satisfaction of the Administrative Agent.
SUBPART 3.1.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendment, duly executed and delivered
on behalf of each Borrower, the Administrative Agent, the Required Lenders, each
364 Day Revolving Loan Lender and the Issuer.
SUBPART 3.1.2. Fees. The Administrative Agent shall have received, for
the account of each 364 Day Revolving Loan Lender approving this Amendment by no
later than March 21, 2003, an extension fee in an amount equal to .075% of each
such Lender's Percentage of the aggregate 364 Day Revolving Loan Commitment
Amount (after giving effect to this Amendment).
SUBPART 3.1.3. Opinion of Counsel. The Administrative Agent shall have
received an opinion, dated the date of this Amendment and addressed to the
Administrative Agent and all Lenders, from Xxxxxxxxx & Xxxxxx, P.A., special
counsel to the Obligors, in form and substance satisfactory to the
Administrative Agent.
SUBPART 3.1.4. Resolutions. The Administrative Agent shall have
received resolutions of the Board of Directors of the Borrower duly ratifying
the execution, delivery and performance of this Amendment, duly certified by an
Authorized Officer as being in full force and effect without amendment or
modification, all in form and substance reasonably satisfactory to the
Administrative Agent.
SUBPART 3.1.5. Repayments. The Borrower shall have prepaid outstanding
364 Day Revolving Loans to the extent, if any, that the aggregate principal
amount thereof exceeds $100,000,000.
SUBPART 3.1.6. Legal Details, etc. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel.
PART IV
MISCELLANEOUS; REPRESENTATIONS AND COVENANT
SUBPART 4.1. Continuing Effectiveness, etc. As amended hereby, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects. After the Third Amendment Effective Date, all
references in the Credit Agreement and each other Loan Document to the "Credit
Agreement" shall refer to the Existing Credit Agreement, after giving effect to
this Amendment, and this Amendment shall be a Loan Document for all purposes.
The Borrower hereby confirms its obligations under Section 10.3 of the Credit
Agreement to pay all fees and expenses of the Administrative Agent in connection
with this Amendment and other ongoing administration of the Credit Agreement
since the last invoice it received, including reasonable fees and other charges
of Shearman & Sterling in connection therewith.
SUBPART 4.2. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same Amendment.
SUBPART 4.3. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SUBPART 4.4. Successors and Assigns. This Amendment shall be binding
upon the Borrower, the Lenders and the Agents and their respective successors
and assigns, and shall inure to their successors and assigns.
SUBPART 4.5. Representations and Warranties. In order to induce the
Lenders to execute and deliver this Amendment, the Borrower represents and
warrants to the Agents, the Lenders and the Issuer that, after giving effect to
the terms of this Amendment, the following statements are true and correct: (a)
the representations and warranties set forth in Article VI of the Existing
Credit Agreement and in the other Loan Documents are true and correct on the
Third Amendment Effective Date as if made on the Third Amendment Effective Date
and after giving effect to the this Amendment (unless stated to relate solely to
an earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date); and (b) no Default
has occurred and been continuing.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective authorized officers as of the day and
year first above written.
XXXX-XXXXX STORES, INC.
By:/s/ X.X. XxXxxx
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Title: SVP and CFO
LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
Issuer and as a Lender
By:
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Title:
AMSOUTH BANK, as Lender
By:/s/ Xxxx Del Xxxxx
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Title: Vice President
BANGKOK BANK, as Lender
By:/s/ Piyaratana Xxxxxxx
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Title: Vice President
CHEVY CHASE BANK, as Lender
By:/s/ Xxxx Xxxxxx
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Title: Vice President
CIBC INC., as Lender
By:
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Title:
COBANK, ACB, as Lender
By:/s/ Xxxxxxx Xxxx
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Title: Vice President
COMMERCEBANK N.A., as Lender
By:
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Title:
COMPASS BANK, as Lender
By:/s/ Xxxxx X. XxXxx
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Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Lender
By:/s/ Xxxxxx Xxx
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Title: Senior Vice President
EAST WEST BANK, as Lender
By:
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Title:
FLEET NATIONAL BANK, as Lender
By:
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Title:
GMAC BUSINESS CREDIT, LLC, as Lender
By:
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Title:
GMAC COMMERCIAL CREDIT LLC, as Lender
By:
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Title:
XXXXXX TRUST & SAVINGS BANK,
as Lender
By:/s/ Xxxxx Place
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Title: Vice President
XXXXXXX XXXXX BANK USA, as Lender
By:
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Title:
SUNTRUST BANK, as Lender
By:/s/ Xxxxx Xxxxxxxx
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Title: Vice President
TAIPEI BANK, NEW YORK AGENCY,
as Lender
By:
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Title:
TEXTRON FINANCIAL CORPORATION,
as Lender
By:/s/ Xxxx Xxxxxxxx
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Title: Manager of Credit and
Operations
TRANSAMERICA BUSINESS CAPITAL
CORPORATION, as Lender
By:/s/ Xxxxxxx Xxxxxxxxxx
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Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Lender
By:/s/ Xxxxxxx Xxxxxxx
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Title: Senior Vice President
