EXHIBIT 10.25
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
XXXXXXXXX XXXXX, INC.
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of March 12,
2002 (this "Amendment"), by and among XXXXXXXXX XXXXX, INC. (the "Borrower"), a
California corporation having its principal place of business at 0000 Xxxxxx
Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, and XXXXXXXXX XXXXX HOLDING, INC. (the
"Guarantor"), XXXXXXXXX XXXXX MERCHANDISING, INC., a California corporation (the
"Subsidiary Guarantor"), FLEET NATIONAL BANK, formerly known as BankBoston,
N.A., a national banking association ("Fleet"), and the other lending
institutions listed on Schedule 1 to the Credit Agreement referred to below
(together with Fleet, the "Banks"), and FLEET NATIONAL BANK, formerly known as
BankBoston, N.A., as agent for itself and such other lending institutions (the
"Agent").
WHEREAS, the Borrower, the Guarantor, the Banks, and the Agent are
parties to a Revolving Credit Agreement dated as of December 23, 1999 (as
amended and in effect from time to time, the "Credit Agreement," capitalized
terms defined therein having the same meanings herein as therein), pursuant to
which the Banks have extended credit to the Borrower on the terms and subject to
the conditions set forth therein;
WHEREAS, the Borrower and the Guarantor have requested that the Agent
and the Banks make certain amendments to the Credit Agreement;
WHEREAS, subject to the terms and conditions set forth herein, the
Borrower, the Guarantor, the Banks, and the Agent have agreed to amend the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree to amend the Credit Agreement as
follows:
1. AMENDMENT OF SECTION 1.1 OF THE CREDIT AGREEMENT. The definition of
"Capital Expenditures" set forth in section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"Capital Expenditures. Amounts paid or Indebtedness incurred by
the Guarantor or any of its Subsidiaries in connection with the purchase
or lease by the Guarantor or any of its Subsidiaries of fixed assets
that would be required to be capitalized and shown on the balance sheet
of such Person in accordance with generally accepted accounting
principles; provided, that (a) Capital Expenditures shall not include
(i) for any four consecutive fiscal quarter period of the Guarantor
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commencing with the fiscal quarter of the Guarantor ending March 30,
2002 and ending with the fiscal quarter of the Guarantor ending March
29, 2003, up to an aggregate amount of $6,700,000 of amounts paid or
Indebtedness incurred in connection with the Borrower's Ontario,
California distribution center or (ii) amounts paid or Indebtedness
incurred in respect of Capitalized Leases, and (b) Capital Expenditures
shall be calculated (i) net of any landlord allowances for the purchase,
lease or other acquisition or construction of fixed assets, and (ii) in
connection with the replacement or repair of any fixed asset, net of any
cash sale or insurance proceeds received by the Guarantor or its
Subsidiaries in respect of a sale of or casualty involving the fixed
asset which is replaced or repaired."
2. REPRESENTATIONS AND WARRANTIES. Each of the Borrower, the
Guarantor and the Subsidiary Guarantor hereby represents and warrants to the
Agent and the Banks as of the date hereof, and as of any date on which the
conditions set forth in Section 3 below are met, as follows:
(a) The execution and delivery by each of the Borrower, the
Guarantor, and the Subsidiary Guarantor of this Amendment and all other
instruments and agreements required to be executed and delivered by the
Borrower, the Guarantor and the Subsidiary Guarantor in connection with the
transactions contemplated hereby or referred to herein (collectively, the
"Amendment Documents"), and the performance by each of the Borrower, the
Guarantor or the Subsidiary Guarantor of any of its obligations and agreements
under the Amendment Documents and the Credit Agreement and the other Loan
Documents, as amended hereby, are within the corporate or other authority of
each of the Borrower, the Guarantor and the Subsidiary Guarantor, have been
authorized by all necessary corporate proceedings on behalf of each of the
Borrower, the Guarantor and the Subsidiary Guarantor, and do not and will not
contravene any provision of law or the Borrower's charter or any of the
Guarantors' charters, other incorporation or organizational papers, by-laws or
any stock provision or any amendment thereof or of any indenture, agreement,
instrument or undertaking binding upon the Borrower, the Guarantor and the
Subsidiary Guarantor.
(b) Each of the Amendment Documents and the Credit Agreement and
other Loan Documents, as amended hereby, to which the Borrower, the Guarantor or
the Subsidiary Guarantor is a party constitute legal, valid and binding
obligations of such Person, enforceable in accordance with their terms, except
as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting generally the enforcement of creditors' rights.
(c) No approval or consent of, or filing with, any governmental
agency or authority is required to make valid and legally binding the execution,
delivery or performance by the Borrower, the Guarantor or the Subsidiary
Guarantor of the Amendment Documents or the Credit Agreement or other Loan
Documents, as amended hereby, or the consummation by the Borrower, the Guarantor
or the Subsidiary Guarantor of the transactions among the parties contemplated
hereby and thereby or referred to herein.
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(d) The representations and warranties contained in Section 7 of the
Credit Agreement and in the other Loan Documents were true and correct as of the
date made. Except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents,
changes occurring in the ordinary course of business (which changes, either
singly or in the aggregate, have not been materially adverse) and to the extent
that such representations and warranties relate expressly to an earlier date and
after giving effect to the provisions hereof, such representations and
warranties, after giving effect to this Amendment, also are correct as of the
date hereof.
(e) Each of the Borrower, the Guarantor and the Subsidiary Guarantor
has performed and complied in all material respects with all terms and
conditions herein required to be performed or complied with by it prior to or at
the time hereof, and as of the date hereof, after giving effect to the
provisions of this Amendment and the other Amendment Documents, there exists no
Event of Default or Default.
(f) Each of the Borrower, the Guarantor and the Subsidiary Guarantor
acknowledges and agrees that the representations and warranties contained in
this Amendment shall constitute representations and warranties referred to in
Section 13.1(e) of the Credit Agreement, a breach of which shall constitute an
Event of Default.
3. EFFECTIVENESS. This Amendment shall become effective as of the
date first written above (the "Effective Date") upon the satisfaction of each of
the following conditions, in each case in a manner satisfactory in form and
substance to the Agent and the Banks:
(a) This Amendment shall have been duly executed and delivered by
each of the parties thereto and shall be in full force and effect;
(b) The Agent shall have received such other items, documents,
agreements, items or actions as the Agent may reasonably request in order to
effectuate the transactions contemplated hereby.
4. MISCELLANEOUS PROVISIONS.
(a) Each of the Borrower, the Guarantor and the Subsidiary Guarantor
hereby ratifies and confirms all of its Obligations to the Agent and the Banks
under the Credit Agreement, as amended hereby, and the other Loan Documents,
including, without limitation, the Loans, and each of the Borrower, the
Guarantor and the Subsidiary Guarantor hereby affirms its absolute and
unconditional promise to pay to the Banks and the Agent the Loans, reimbursement
obligations and all other amounts due or to become due and payable to the Banks
and the Agent under the Credit Agreement and the other Loan Documents, as
amended hereby. Except as expressly amended hereby, each of the Credit Agreement
and the other Loan Documents shall continue in full force and effect. This
Amendment and the Credit Agreement shall hereafter be read and construed
together as a single document, and all references in the Credit Agreement, any
other Loan
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Document or any agreement or instrument related to the Credit Agreement shall
hereafter refer to the Credit Agreement as amended by this Amendment.
(b) Without limiting the expense reimbursement requirements set forth
in Section 16 of the Credit Agreement, the Borrower agrees to pay on demand all
costs and expenses, including reasonable attorneys' fees, of the Agent incurred
in connection with this Amendment.
(c) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO
CONFLICT OF LAWS) AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE
WITH SUCH LAWS.
(d) This Amendment may be executed in any number of counterparts, and
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as
a sealed instrument as of the date first set forth above.
XXXXXXXXX XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXXXXX XXXXX HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
FLEET NATIONAL BANK,
individually and as Agent
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Director
SIGNATURE PAGE
TO THE SECOND AMENDMENT
The undersigned hereby acknowledges the foregoing Second Amendment as of
the Effective Date and agrees that its obligations under the Guaranty will
extend to the Credit Agreement, as so amended, and the other Loan Documents.
XXXXXXXXX XXXXX MERCHANDISING, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
