1
EXHIBIT 10.37
AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT (the "Amendment") is dated as of
December 8, 1998, between CHICO'S FAS, INC., a Florida corporation (the
"Borrower"), and NATIONSBANK, N.A., a national banking association (successor
by merger to Founder's National Trust Bank) (the "Bank").
BACKGROUND
Borrower and Bank executed a Loan Agreement dated January 4, 1996 (the
"Agreement"). The Agreement relates to (1) the purchase by Founder's National
Trust Bank of certain promissory notes secured by a mortgage upon and security
interest in certain property of Borrower (such promissory notes being referred
to therein as the "Original Notes"), the mortgage and security agreement
relating thereto, as modified (such mortgage and security agreement, as
modified, being referred to therein as the "Original Mortgage"), the collateral
assignment of rents and leases relating thereto (such collateral assignment of
rents and leases being referred to therein as the "Collateral Assignment") and
various other related loan documents, (2) the grant of a future advance to
Borrower under the Original Mortgage, and (3) the modification, extension,
renewal and consolidation of the terms of the terms and provisions of the
Original Notes and the amendment and restatement of the Original Mortgage.
Pursuant to the provisions of the Agreement, Bank is considered to have made a
$5,587,500.00 real estate loan to Borrower, evidenced by a note referred to
therein as the "Consolidated Replacement Note." Borrower has now requested
certain amendments to the Agreement and Bank has agreed to the request of
Borrower on the terms and conditions of this Amendment.
TERMS
NOW, THEREFORE, in consideration of the foregoing and the promises
contained herein, the parties agree as follows:
1. DEFINED TERMS. Any capitalized terms used but not defined herein
shall have the meanings set forth in the Agreement.
2. AMENDED PROVISIONS. Subject to the conditions set forth in
paragraph 4 hereof, the Agreement shall be and hereby is amended, effective as
of the date hereof, as follows:
(a) The following subsections of the Agreement are deleted in their
entirety: (i) 3.20(m); (ii) 3.20(n); and (iii) 3.20(o).
(b) The following subsection is added at the end of Article 5.1 of
the Agreement:
(q) The occurrence of a default under the Third Amended and
Restated Credit Agreement dated December 30, 1995, as amended, between Borrower
and Bank, or any other Loan Document (as defined therein) relating thereto
beyond all applicable notice, grace and cure periods.
3. EXPENSES. Without limiting the provisions of the Agreement,
Borrower covenants and agrees to pay all costs and expenses of Bank in
connection with the closing of the transactions evidenced hereby, including,
but not limited to, Bank's reasonable attorneys' fees, recording or filing
costs or expenses, intangible taxes, documentary stamps, surtax and other
revenue fees, and similar items.
2
4. LOAN AGREEMENT, RATIFICATION, NO NOVATION. Except as expressly
modified or supplemented hereby, the Agreement and all agreements, instruments,
and documents executed or delivered pursuant thereto (collectively, the "Loan
Documents") have remained and shall remain at all times in full force and
effect in accordance with their respective terms, and have not been novated by
the provisions of this Amendment.
5. REPRESENTATIONS AND WARRANTIES. To induce Bank to enter into this
Amendment and to perform the transactions described herein, Borrower hereby
represents and warrants to Bank that Borrower has re-examined the Agreement and
on and as of the date hereof:
(a) The representations and warranties made by the Borrower in
Article III of the Agreement are correct and complete as of the date of this
Amendment, except to the extent written waivers have been provided by the Bank;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower since the date of the most recent
financial reports of the Borrower received by the Bank under Article 2.2
thereof, other than changes in the ordinary course of business; and
(c) No event has occurred and no condition exists that, upon the
consummation of the transaction contemplated hereby, constitutes a default or
an Event of Default on the part of the Borrower under the Agreement or any
Note, either immediately or with the lapse of time or the giving of notice, or
both.
6. NO WAIVER BY BANK. The execution of this Amendment shall not
constitute a waiver of any default or Event of Default in the Agreement or any
other Loan Document existing on the date hereof, nor shall it eliminate any
right which Bank may otherwise have to accelerate the indebtedness subject to
the Agreement by virtue of any default or Event of Default.
7. RELIANCE UPON, SURVIVAL OF, AND MATERIALITY OF REPRESENTATIONS AND
WARRANTIES, AGREEMENTS, AND COVENANTS. All representations and warranties,
agreements, and covenants made by Borrower herein are material and shall be
deemed to have been relied upon by Bank, notwithstanding any investigation
heretofore or hereafter made by Bank, shall survive the execution and delivery
of this Amendment, and shall continue in full force and effect so long as any
indebtedness is owed by Borrower to Bank.
8. COOPERATION, FURTHER ASSURANCES. Borrower agrees to cooperate with
Bank so that the interests of Bank are protected and the intent of the Loan
Documents and this Amendment can be effectuated.
9. ESTOPPEL AND RELEASE. Borrower hereby acknowledges and agrees that,
as of the date hereof, there exists no right of offset, defense, counterclaim,
claim, or objection in favor of such party as against Bank with respect to any
of the Loan Documents, any collateral therefor, or any other aspect of the
transactions contemplated by the Agreement or the Loan Documents. In connection
with the foregoing, Borrower hereby releases and discharges Bank, its
subsidiaries, affiliates, directors, officers, employees, attorneys, agents,
successors, and assigns from any and all rights, claims, demands, actions,
causes of action, suits, proceedings, agreements, contracts, judgments,
damages, debts, duties, liabilities, or obligations of any kind or character,
including without limitation such claims and defenses as fraud, mistake, and
usury, whether in law or in equity,
2
3
known or unknown, xxxxxx or inchoate, which it has had, now has, or hereafter
may have, arising under or in any manner relating to, whether directly or
indirectly, the Loan Documents, any collateral therefor or guaranties thereof,
or any other aspect of the transactions contemplated thereby, from the
beginning of time until the date hereof.
10. COURSE OF DEALING; AMENDMENT; SUPPLEMENTAL AGREEMENTS. No course
of dealing between the parties hereto shall be effective to amend, modify, or
change any provision of this Amendment or the other Loan Documents. This
Amendment, the Agreement and the other Loan Documents may not be amended,
modified, or changed in any respect except by an agreement in writing signed by
the party against whom such change is to be enforced. The parties hereto may,
subject to the provisions of this Section, from time to time, enter into
written agreements supplemental hereto for the purpose of adding any provision
to this Amendment or the other Loan Documents or changing in any manner the
rights and obligations of the parties hereunder. Any such supplemental
agreement in writing shall be binding upon the parties thereto.
11. HEADINGS. The titles and headings preceding the text of the
paragraphs of this Amendment have been inserted solely for convenience of
reference and shall neither constitute a part of this Amendment nor affect its
meaning, interpretation, or effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
WITNESSES: CHICO'S FAS, INC.,
a Florida corporation
/s/ By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxx,
/s/ Executive Vice President -
----------------------------------- Finance
NATIONSBANK, N.A.,
a national banking association
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx,
Senior Vice President
3
