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Exhibit 10.1
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THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDMENT (this "Amendment"), dated as of May 23, 1997, to the
Amended and Restated Credit Agreement, dated as of September 12, 1996, as
amended by a First Amendment, dated as of October 31, 1996 and a Second
Amendment, dated as of December 5, 1996 (as so amended, the "Credit Agreement"),
among The Ground Round, Inc. (the "First Borrower"), a Delaware corporation, GR
of Minn., Inc., a Delaware corporation (the "Second Borrower", and together with
the First Borrower, the "Borrowers"), the banks named therein (the "Lenders"),
The Bank of New York, as Agent (the "Agent") and The Chase Manhattan Bank, as
Co-Agent.
PRELIMINARY STATEMENTS:
A. The Borrowers desire to amend the Credit Agreement as more fully
provided for herein.
B. The Lenders and the Agent are willing to amend the Credit Agreement
subject to the terms and conditions contained herein.
C. Unless otherwise defined herein, all terms defined in the Credit
Agreement shall be used herein as therein defined.
In consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
SECTION 1. Amendments to Credit Agreement.
The Credit Agreement is, effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 2 below,
hereby amended as follows:
(a) Section 1.01 is hereby amended by inserting the following
new definitions in appropriate alphabetical order:
"Convertible Note Maturity Date" has the meaning set
forth in Section 2.06(c).
"Third Amendment" means the Third Amendment, dated as
of May 23, 1997, to this Agreement.
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(b) Section 2.06(c) is hereby amended in its entirety to read
as follows:
"(c) Interest on Convertible Notes. From June 1, 1997 until
the earlier of (x) the date upon which demand for payment
shall have been made by the holder of the respective
Convertible Note, (y) the date upon which the principal
amounts under the Convertible Notes shall otherwise become due
and payable in accordance with their terms and (z) the date
upon which the respective Convertible Note shall have been
converted in accordance with its terms (the earliest such
date, the "Convertible Note Maturity Date"), each of the
Convertible Notes shall bear interest on the unpaid principal
amount thereof (including amounts added to the principal
thereof in accordance with the terms hereof) at the rate of
ten percent (10%) per annum. Interest on the Convertible Notes
shall accrue monthly on the last day of each month, and
payment thereof shall be deferred until the Convertible Note
Maturity Date. The amount of accrued interest on the
Convertible Notes shall be added to the principal amount
thereof on the last day of each month. After the Convertible
Note Maturity Date, the Borrowers shall pay interest on any
amounts due and owing under the Convertible Notes, on demand,
at a rate per annum equal to 2.75% above the Alternate Base
Rate."
(c) Exhibit B to the Credit Agreement is hereby amended and
replaced in its entirety by Exhibit B hereto.
SECTION 2. Conditions to Effectiveness.
This Amendment shall not become effective until the date on which the
Agent shall have received (i) counterparts of this Amendment signed by each of
the parties hereto; (ii) the Convertible Notes to the order of the Lenders;
(iii) the consent appended hereto executed by each of the Guarantors (the
"Consent"); and (iv) such other documents as the Agent shall reasonably request.
SECTION 3. Representations and Warranties.
The Borrowers hereby (a) reaffirm and admit the validity and
enforceability of the Loan Documents and all of their obligations thereunder,
(b) agree and admit that they have no defenses to or offsets against any of
their obligations to the Agent or any Lender
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under the Loan Documents, and (c) represent and warrant that there exists no
Default or Event of Default and that the representations and warranties
contained in the Credit Agreement are true and correct on and as of the date
hereof.
SECTION 4. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import, and each reference in
the other Loan Documents to the Credit Agreement, shall mean and be a reference
to the Credit Agreement as amended hereby;
(b) Except as specifically amended or waived above, the Credit
Agreement and the Notes, and all other Loan Documents, shall remain in full
force and effect and are hereby ratified and confirmed. Without limiting the
generality of the foregoing, the Collateral Documents and all Collateral
described therein shall continue to secure the payment of the obligations of the
Borrowers thereunder, under the Credit Agreement, as amended hereby, and under
the Notes and other Loan Documents; and
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Agent under any of the Loan
Documents, nor, except as provided herein, constitute a waiver of any provision
of any of the Loan Documents.
SECTION 5. Costs and Expenses.
The Borrowers agree to pay on demand all reasonable costs and expenses
of the Agent in connection with the arranging, preparation, reproduction,
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, including the reasonable fees and expenses of Xxxxxx,
Xxxxx & Xxxxxxx, LLP, special counsel for the Agent, with respect thereto, and
of local counsel, if any, who may be retained by said special counsel with
respect thereto.
SECTION 6. Counterparts.
This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which shall be an
original and all of which together shall constitute but one and the same
document.
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SECTION 7. Governing Law.
This Amendment is intended to be performed in the State of New York and
shall be construed and is enforceable in accordance with, and shall be governed
by, the internal laws of the State of New York without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
THE GROUND ROUND, INC.
By:_____________________________________
Name:
Title:
GR OF MINN., INC.
By:_____________________________________
Name:
Title:
THE BANK OF NEW YORK,
Individually and as Agent
By:_____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By:_____________________________________
Name:
Title:
BANK OF AMERICA ILLINOIS
By:_____________________________________
Name:
Title:
NBD BANK
By:_____________________________________
Name:
Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:_____________________________________
Name:
Title:
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