EXHIBIT 10.1
AMENDMENT NO. 7
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 7 (this "Amendment") to the "Credit Agreement" (defined
below) is entered into as of June 13, 2001 by and among XXXXXXXXX XXXXX
CORPORATION, an Illinois corporation (the "Borrower"), the financial
institutions party to the Credit Agreement (collectively, the "Lenders") and
BANK ONE, NA, formerly known as THE FIRST NATIONAL BANK OF CHICAGO, as one of
the Lenders and in its capacity as contractual representative (the "Agent") on
behalf of itself and the other Lenders.
RECITALS:
WHEREAS, the Borrower, the Lenders and the Agent have entered into that
certain Amended and Restated Credit Agreement dated as of July 2, 1997, as
amended (the "Credit Agreement");
WHEREAS, the Borrower has notified the Lenders and the Agent that the
Borrower wishes to amend the Credit Agreement in certain respects;
WHEREAS, the Lenders and the Agent are willing to amend the Credit
Agreement on the terms and conditions herein set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to such terms in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. Upon the effectiveness of this Amendment
in accordance with the provisions of SECTION 3 below, the Credit Agreement is
hereby amended as follows:
The definition of "TERMINATION DATE" set forth in SECTION 1.1 of the Credit
Agreement is hereby amended to delete therefrom the date "June 15, 2001" and to
substitute therefor the date "June 28, 2001."
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective and
be deemed effective as of the date hereof (the "Effective Date") if, and only
if, the Agent shall have received each of the following:
(a) four (4) duly executed originals of this Amendment from the
Borrower, the Agent and the Lenders;
(b) an amendment fee of $10,000 for the ratable benefit of the
Lenders;
(c) Reaffirmation of Guaranty executed by Xxxxxx May Holdings, Inc.,
Sweet Factory, Inc., Sweet Factory Group, Inc., SF Candy Company and SF
Properties, Inc.;
(d) written certification from an officer of the Borrower that (i) on
the Effective Date, no Default or Unmatured Default has occurred and is
continuing and (ii) execution, delivery and effectiveness of this Amendment
do not and will not conflict with the terms and conditions of the Senior
Note Indenture and do not and will not trigger an "Event of Default" under
the Senior Note Indenture;
(e) an executed copy of Amendment No. 2 to the Canadian Credit
Agreement and such Amendment No. 2 shall be in full force and effect; and
(f) on or prior to June 14, 2001, an effective commitment letter or
other commitment documents, in form and substance acceptable to it,
executed and delivered by LaSalle Business Credit, Inc. and the Borrower
evidencing LaSalle Business Credit, Inc.'s binding commitment to enter into
a credit facility with the Borrower, the proceeds of which, in part, would
satisfy in full all outstanding Secured Obligations.
4. CONDITION SUBSEQUENT. This Amendment shall be null, void and of no
force and effect on and after June 22, 2001 if the Agent shall not have received
by 12:00 p.m. (Chicago time) in immediately available funds on such date an
additional amendment fee of $10,000 for the ratable benefit of the Lenders.
5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
5.1 The Borrower represents and warrants as of the date hereof that:
(a) Its execution, delivery and performance of this Amendment are
within its corporate powers, have been duly authorized by all necessary
corporate action and do not require any consent or approval which has not
been obtained; and
(b) This Amendment and the Credit Agreement as amended hereby are its
legal, valid and binding obligations, enforceable in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general equitable principles.
5.2 The Borrower affirms that the representations and warranties
contained in the Credit Agreement are true and correct as of the Effective Date.
5.3 The Borrower affirms that each of the Collateral Documents is in
full force and effect as of the date hereof and that the Collateral Documents
secure the payment in full of the Secured Obligations.
6. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
6.1 Upon the effectiveness of this Amendment pursuant to SECTION 3
hereof, on and after the Effective Date each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import and
each reference to the Credit
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Agreement in each Loan Document shall mean and be a reference to the Credit
Agreement as modified hereby.
6.2 Except as specifically waived or amended herein, all of the terms,
conditions and covenants of the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and confirmed.
6.3 The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of (a) any right, power
or remedy of any Lender or the Agent under the Credit Agreement or any of the
Loan Documents, or (b) any Default or Unmatured Default under the Credit
Agreement.
7. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original and all
of which taken together shall constitute one and the same agreement.
9. 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.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have executed
this Amendment No. 7 as of the date first above written.
XXXXXXXXX XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and CFO
BANK ONE, NA, formerly known as The First National
Bank of Chicago, individually and as Agent
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Director, Capital Markets
FLEET BUSINESS CREDIT CORPORATION, formerly
known as Sanwa Business Credit Corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
