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Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
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This First Amendment to Credit Agreement is made as of this ___ day of
May, 2001 by and among
XX-XXX STORES, INC., an Ohio corporation, having a principal place of
business at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx 00000, as Lead Borrower for
the Borrowers, being
said XX-XXX STORES, INC., and
FCA of Ohio, Inc., an Ohio corporation, having a principal
place of business at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx 00000, and
House of Fabrics, Inc., a Delaware corporation, having a
principal place of business at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx
00000, and
Xx-Xxx Stores Supply Chain Management, Inc., an Ohio
corporation, having a principal place of business at 0000
Xxxxxx Xxxx, Xxxxxx, Xxxx 00000
each of the Lenders party to the Credit Agreement (defined below)
(together with each of their successors and assigns, referred to
individually as a "Lender" and collectively as the "Lenders"), and
FLEET NATIONAL BANK, as Issuing Bank, a national banking association
having a place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000; and
FLEET RETAIL FINANCE INC., as Administrative Agent and Collateral Agent
for the Lenders, a Delaware corporation, having its principal place of
business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and
CONGRESS FINANCIAL CORPORATION, as Documentation Agent; and
GMAC COMMERCIAL CREDIT, LLC, NATIONAL CITY COMMERCIAL FINANCE, INC. AND
THE CIT GROUP/BUSINESS CREDIT, INC., as Co-Agents
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H
A. Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of April 24, 2001 by and among the Lead Borrower, the Borrowers, the
Lenders, the Issuing Bank, the Agents, the Documentation Agent and the
Co-Agents.
B. The parties to the Credit Agreement desire to modify and amend
certain
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provisions of the Credit Agreement, as povided herein.
Accordingly, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS TO ARTICLE I OF THE CREDIT AGREEMENT. The provisions of
Article I of the Credit Agreement are hereby amended as follows:
(a) The definition of "Covenant Compliance Event" is hereby
amended by deleting the reference to "Section 6.12" appearing
therein and substituting "Section 6.11" in its stead.
(b) The definition of "Eligible L/C Inventory" is hereby
amended by deleting subparagraph (b) thereof and substituting
the following in its stead:
(b) the purchase of which is supported by a
Commercial Letter of Credit or Banker's Acceptance
having an expiry within sixty (60) days of such date
of determination
(c) The definition of "Letter of Credit" is hereby amended to
add the following sentence:
"Letter of Credit" shall also mean and include all
Banker's Acceptances.
(d) The definition of "Obligations" is hereby amended to add
the words, "including Banker's Acceptances" after the words
"Letters of Credit" in clause (ii) thereof.
(e) The following new definitions are hereby added to
Article I:
"BANKERS ACCEPTANCE": A time draft on a Commercial
Letter of Credit which has been accepted by the
Issuing Bank.
"RELATED FUND": With respect to any Lender which is a
fund that invests in loans, any other fund that
invests in loans that is managed by the same
investment advisor as the Lender or by an Affiliate
of such Lender or investment advisor.
3. AMENDMENTS TO ARTICLE II OF THE CREDIT AGREEMENT. The provisions of
Article II of the Credit Agreement are hereby amended as follows:
(a) By deleting the provisions of Section 2.06(c) in their
entirety and substituting the following in their stead:
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(c) Each Commercial Letter of Credit and Banker's
Acceptance shall expire at or prior to the close of
business on the earlier of (i) the date 210 days
after the date of the issuance of such Commercial
Letter of Credit and (ii) the date that is five
Business Days prior to the Maturity Date.
(b) By deleting the provisions of Section 2.13(a)(ii) in their
entirety and substituting the following in their stead:
(ii) Commercial Letters of Credit (including Banker's
Acceptances): The Applicable Margin for Eurodollar
Loans minus .50%.
(c) By adding the following new subsection to Section 2.13:
(c) The Borrowers shall also pay to the
Administrative Agent, for the account of the Issuing
Bank, and in addition to all Letter of Credit Fees
otherwise provided for hereunder, such commissions,
drawing fees, and other fees and charges in
connection with the issuance, negotiation,
settlement, amendment and processing of each Banker's
Acceptance issued by the Issuing Bank as are
customarily imposed by the Issuing Bank from time to
time in connection with Banker's Acceptance
transactions.
4. AMENDMENTS TO ARTICLE VI OF THE CREDIT AGREEMENT. The provisions of
Article VI of the Credit Agreement are hereby amended by deleting clause (ii) of
Section 6.06 and substituting the following in its stead:
(ii) the wholly owned Subsidiaries of the Lead
Borrower may declare and pay dividends ratably with
respect to their capital stock, and
5. AMENDMENTS TO ARTICLE IX OF THE CREDIT AGREEMENT. The provisions of
Article IX of the Credit Agreement are hereby amended as follows:
(a) by deleting the provisions of Section 9.05(b)(i) and
substituting the following in its stead:
(i) except in the case of an assignment to a Lender
or an Affiliate of a Lender or to a Related Fund,
each of the Lead Borrower (but only after the
completion of the initial syndication and if no
Default then exists), the Agents and the Issuing Bank
must give their prior written consent to such
assignment (which consent shall not be unreasonably
withheld or delayed),
(b) by deleting the provisions of Section 9.05(b)(iv) and
substituting the
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following in its stead:
(iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Acceptance, and, after completion of the syndication
of the Loans, together with a processing and
recordation fee of $3,500, provided that no such fee
shall be payable in the case of an assignment to a
Lender or an Affiliate of a Lender or to a Related
Fund.
(c) by deleting the provisions of Section 9.05(g) and
substituting the following in its stead:
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights
under this Agreement to secure obligations of such
Lender, including (i) any pledge or assignment to
secure obligations to a Federal Reserve Bank, and
(ii) in the case of a Lender which is a fund, any
pledge or assignment of all or any portion of such
Lender's rights under this Agreement to any holders
of obligations owed, or securities issued, by such
Lender as security for such obligations or
securities, or to any trustee for, or any other
representative of, such holders and this Section
shall not apply to any such pledge or assignment of a
security interest, PROVIDED that no such pledge or
assignment of a security interest shall release a
Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such
Lender as a party hereto.
6. CONDITIONS PRECEDENT TO EFFECTIVENESS. This First Amendment shall
not be effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Administrative Agent:
a. This First Amendment shall have been duly executed and
delivered by the respective parties hereto and, shall be in
full force and effect and shall be in form and substance
satisfactory to the Administrative Agent and the Lenders.
b. All action on the part of the Borrowers necessary for the
valid execution, delivery and performance by the Borrowers of
this First Amendment shall have been duly and effectively
taken and evidence thereof satisfactory to the Administrative
Agent shall have been provided to the Administrative Agent.
c. The Borrowers shall have provided such additional instruments
and documents to the Administrative Agent as the
Administrative Agent and Administrative Agent's counsel may
have reasonably requested.
7. MISCELLANEOUS.
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a. This First Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all
of which together shall constitute one instrument.
b. This First Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby.
No prior negotiations or discussions shall limit, modify, or
otherwise affect the provisions hereof.
c. Any determination that any provision of this First Amendment
or any application hereof is invalid, illegal or unenforceable
in any respect and in any instance shall not effect the
validity, legality, or enforceability of such provision in any
other instance, or the validity, legality or enforceability of
any other provisions of this First Amendment.
d. The Borrowers shall pay on demand all costs and expenses of
the Agents, including, without limitation, reasonable
attorneys' fees in connection with the preparation,
negotiation, execution and delivery of this First Amendment.
e. The Borrowers warrant and represent that the Borrowers have
consulted with independent legal counsel of the Borrowers'
selection in connection with this First Amendment and is not
relying on any representations or warranties of the Agents,
the Lenders or their counsel in entering into this First
Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this First Amendment
as of the day and year first above written.
XX-XXX STORES, INC.
as Lead Borrower and Borrower
by
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Name:
Title:
FCA OF OHIO, INC.
as Borrower
by
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Name:
Title:
HOUSE OF FABRICS, INC.
as Borrower
by
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Name:
Title:
XX-XXX STORES SUPPLY CHAIN MANAGEMENT, INC.
as Borrower
by
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Name:
Title:
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FLEET RETAIL FINANCE INC.,
as Administrative Agent, as Collateral
Agent, as Swingline Lender, and as Lender
By:
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Name:
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Title:
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FLEET NATIONAL BANK,
as Issuing Bank
By:
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Name:
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Title:
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CONGRESS FINANCIAL
CORPORATION, as Documentation Agent
and Lender
By:
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Name:
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Title:
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GMAC COMMERCIAL CREDIT, LLC
as Co-Agent and Lender
By:
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Name:
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Title:
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NATIONAL CITY COMMERCIAL FINANCE, INC.
as Co-Agent and Lender
By:
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Name:
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Title:
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THE CIT GROUP/BUSINESS CREDIT, INC.
as Co-Agent and Lender
By:
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Name:
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Title:
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FOOTHILL CAPITAL CORPORATION
as Lender
By:
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Name:
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Title:
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THE PROVIDENT BANK
as Lender
By:
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Name:
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Title:
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