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EXHIBIT 10.2
EXECUTION VERSION
THIRD AMENDMENT
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This THIRD AMENDMENT (this "Agreement") is dated as of July 31,
2004 and is entered into by and between XXX RIVER INC., a Georgia
corporation, as debtor and debtor in possession (the "Borrower") and
DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity as the Agent for
the Lenders under the Credit Agreement referred to below (in such
capacity, the "Agent").
RECITALS:
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WHEREAS, pursuant to that certain Post-Petition Credit Agreement,
dated as of April 1, 2004, by and among (among others) the Borrower,
the Agent and the lenders from time to time party thereto
(collectively, the "Lenders") (as amended by the Amendment thereto,
dated May 27, 2004, the Second Amendment thereto, dated July 20, 2004,
and as further amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), the Lenders have agreed to
make certain Loans and issue certain Letters of Credit to and for the
benefit of the Borrower;
WHEREAS, the Borrower has requested that the Majority Lenders
agree to certain modifications in respect of the Credit Agreement as
more particularly described below;
WHEREAS, the Agent, upon the written consent of the Majority
Lenders, is willing to so modify the Credit Agreement on the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, unless otherwise defined herein, capitalized terms used
in this Agreement shall have the same definitions as are contained in
the Credit Agreement.
NOW, THEREFORE for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and incorporating
the foregoing recitals herein, the parties hereto agree as follows.
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ARTICLE I.
AGREEMENT
Subject to the terms and conditions set forth in this Agreement
(including, without limitation, Article III) and in reliance upon the
representations and warranties of the Borrower set forth herein, the
parties hereto hereby agree as follows:
1.1 Agreement. Notwithstanding anything to the contrary set
forth in Section 7.1(k)(ii) of the Credit Agreement, the delivery by
the Borrower of the budget for the three week period ending August 21,
2004 as set forth on Annex I hereto (the "July 27 Budget") shall
satisfy the Borrower's obligations under Section 7.1(k)(ii); provided
that (i) on or before August 21, 2004, the Borrower shall have
delivered to the Agent a replacement Budget for the 16-week period
commencing July 18, 2004 in form and substance satisfactory to, and
subject to the approval of, the Agent and the Majority Lenders in
their sole discretion and (ii) notwithstanding anything contained in
the July 27 Budget or in the Credit Agreement to the contrary, for the
period commencing on the date hereof and ending on August 21, 2004,
the aggregate amount of outstanding Revolving Loans shall at no time
exceed $75,000,000, it being acknowledged and agreed that the failure
by the Borrower to comply with either of the requirements set forth in
clauses (i) and (ii) above shall constitute an immediate Event of
Default under Section 9.1 of the Credit Agreement. For the avoidance
of doubt, for purposes of determining compliance with Section 8.23 of
the Credit Agreement for each of the weekly periods ending August 7,
2004, August 14, 2004 and August 21, 2004, all references to the
"Budget" in Section 8.23 shall be deemed to be references to the July
27 Budget.
1.2 Limitation. Nothing in this Agreement, nor in any
communication between the Agent and/or any of the other Secured
Parties and the Borrower or any other Credit Party or any officer,
agent, employee, or representative of the Borrower or any Credit
Party, shall be construed as a waiver of or acquiescence to any
Default or Event of Default, except as otherwise expressly set forth
in this Agreement. The execution and delivery of this Agreement shall
not(i) constitute an extension, modification or waiver of any aspect
of the Credit Agreement or the other Credit Documents (except as
expressly
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provided herein); (ii) extend the terms of the Credit Agreement or any
other Credit Document or the due date of any of the Obligations; (iii)
give rise to any obligation on the part of the Agent or the other
Secured Parties to extend, modify or waive any term or condition of
the Credit Agreement or any of the other Credit Documents (except as
expressly provided herein); or (iv) give rise to any rights of setoff,
defenses or counterclaims to the right of the Agent and the other
Secured Parties to compel payment and performance of the Obligations
or to otherwise enforce any of their respective rights and remedies
under the Credit Agreement and the other Credit Documents. The Agent
and the other Secured Parties hereby expressly reserve all of their
defenses, rights and remedies under the Credit Documents and under
applicable law or otherwise with respect to any Default or Event of
Default (except as expressly provided herein).
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Agent and the
other Lenders as of the date hereof as follows:
2.1 Corporate Power. The Borrower has the requisite corporate
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and under the Credit Documents (as
amended hereby). The execution, delivery and performance by the
Borrower of this Agreement, and the performance by the Borrower and by
each other Credit Party of each Credit Document (as amended hereby) to
which it is a party have been duly approved by all necessary corporate
action of such Credit Party and no other corporate proceedings on the
part of such Credit Party are necessary to consummate such
transactions.
2.2 Authorization and Enforceability. This Agreement has been
duly executed and delivered by the Borrower. Each of this Agreement
and each Credit Document (as amended hereby) is the legal, valid and
binding obligation of each Credit Party party hereto and thereto,
enforceable against such Credit Party in accordance with its terms,
and is in full force and effect.
2.3 Defaults. No event has occurred and is continuing that
constitutes a Default or Event of Default.
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2.4 Schedules and other Information. All information contained
in any schedule attached to this Agreement or subsequently delivered
pursuant to this Agreement is or will be complete and accurate as of
the date hereof or thereof.
ARTICLE III.
CONDITIONS TO EFFECTIVENESS
This Agreement shall not be effective until each of the following
conditions precedent shall have been satisfied.
3.1 Majority Lender Consent. The Majority Lenders shall have
consented in writing to the execution and delivery of this Agreement
by the Agent (or the Agent shall have received evidence satisfactory
to it that such written consent has been provided).
3.2 Execution. The Agent, on behalf of the Lenders, shall have
executed this Agreement and shall have received counterparts of this
Agreement executed by the Borrower. The Agent shall have received
acknowledgments in form and substance satisfactory to it executed by
each Guarantor with respect to this Agreement.
3.3 Representations and Warranties. Each of the representations
and warranties in Article II above shall be true and correct as of the
date of the effectiveness of this Agreement.
3.4 Payment of Fees and Expenses. The Borrower shall have paid
all of the accrued fees and expenses of the Agent and the Lenders
(including, without limitation, the fees and disbursements of counsel
for the Agent) for which invoices shall have been submitted.
ARTICLE IV.
MISCELLANEOUS.
4.1 Reference to and Effect on Credit Documents. On and after
the effectiveness of this Agreement, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of
similar import referring to the Credit Agreement, and each reference
in each of the other Credit Documents to "the Credit Agreement",
"thereunder", "thereof" or words of similar
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import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended by this Agreement. Except
as otherwise expressly set forth herein, the Credit Agreement and each
other Credit Document shall continue to be, and shall remain,
unaltered and in full force and effect in accordance with their terms
and are hereby confirmed and ratified. To the extent that any existing
provision of the Credit Agreement or any other Credit Document is
inconsistent with the specific provisions of this Agreement, the
provisions of this Agreement shall control.
4.2 No Novation. This Agreement shall not be deemed or construed
to be a satisfaction, restatement, novation or release of the Credit
Agreement or of any of the other Credit Documents or a waiver by the
Agent or any Lender of any of the defenses, rights or remedies of the
Agent and the Lenders under the Credit Agreement or any of the other
Credit Documents or at law or in equity or otherwise.
4.3 Reaffirmation. The Borrower hereby reaffirms each and every
covenant, condition, obligation and provision set forth in the Credit
Documents.
4.4 Additional Action. The parties agree to take such further
action to execute and deliver to each other such additional
agreements, instruments and documents as may reasonably be required to
carry out the purposes and intent of this Agreement.
4.5 Headings. Section and Article headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
4.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
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4.7 Governing-Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
4.8 Counterparts. This Agreement may be executed in any number
of counterparts, and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall
be effective as delivery of a manually executed counterpart of this
Agreement.
4.9 Construction: The Borrower acknowledges that it has been
represented by its own legal counsel in connection with the
negotiation, execution and delivery of this Agreement, that it has
exercised independent judgment with respect to this Agreement, and
that it has not relied on the Agent or any Lender or on the Agent's or
any Lender's counsel for any advice with respect to this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered by their proper and duly authorized
officers as of the date first set forth above.
BORROWER:
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XXX RIVER INC., a Georgia corporation,
as debtor and debtor in possession
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
AGENT:
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
in its capacity as Agent for and on
behalf of the Lenders
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Director
ACKNOWLEDGED BY:
GUARANTORS:
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XXX RIVER INTERNATIONAL LTD.,
a Virginia corporation, as
debtor and debtor in possession
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
XXX RIVER FACTORY STORES, INC., a
Georgia corporation, as debtor and
debtor in possession
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Vice President
[signature pages continue]
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THE XXXX COMPANY LLC, a Deleware
Limited company, as debtor and
debtor in possession
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Vice President
