FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.2
[Execution Copy]
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of November 24, 2009, is by and among XXXXXX & XXXXX, INC., a Delaware corporation (“Lead Borrower”), the other Persons party hereto as borrowers (collectively, together with the Lead Borrower, the “Borrowers”), BANK OF AMERICA, N.A., as Administrative Agent (the “Administrative Agent”) and Collateral Agent (the “Collateral Agent”), and each of the Lenders party hereto.
RECITALS:
A. The Borrowers, the guarantors from time to time party thereto, the lenders from time to time party thereto (the “Lenders”), the Administrative Agent and the Collateral Agent, and the other agents party thereto, are parties to that certain Credit Agreement, dated as of September 30, 2009 (as amended hereby and as otherwise amended, restated or modified from time to time, the “Credit Agreement”). Capitalized terms used herein but not otherwise defined herein shall have the meanings given such terms in the Credit Agreement.
B. The parties hereto have agreed to amend the Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:
SECTION 1.01 Amendments to Credit Agreement.
(a) Amendments to Section 1.01.
(i) The existing definition of “Availability Reserves” in Section 1.01 of the Credit Agreement is hereby amended by deleting clause (vi) of the second sentence thereof in its entirety and inserting the following in place thereof:
(vi) warehousemen’s or bailee’s charges and other Permitted Encumbrances which may have priority over the interests of the Collateral Agent in the Collateral (other than Excluded Assets),
(ii) The existing definition of “Eligible Accounts Receivables” in Section 1.01 of the Credit Agreement is hereby amended by deleting clause (d) thereof in its entirety and inserting the following in place thereof:
(d) Accounts with respect to which a Borrower does not have good, valid and marketable title thereto, free and clear of any Lien (other than Liens granted to the Collateral Agent pursuant to the Security Documents and other Permitted Encumbrances) or which are not subject to a first priority security interest in favor of the Collateral Agent;
(iii) The existing definition of “Eligible Credit Card Receivables” in Section 1.01 of the Credit Agreement is hereby amended by deleting clause (c) thereof in its entirety and inserting the following in place thereof:
(c) Credit Card Receivables with respect to which a Borrower does not have good, valid and marketable title, free and clear of any Lien (other than Liens granted to the Collateral Agent pursuant to the Security Documents and other Permitted Encumbrances);
(iv) The existing definition of “Eligible Inventory” in Section 1.01 of the Credit Agreement is hereby amended by inserting the words “in priority” immediately after the phrase “in favor of the Collateral Agent, subject” in the first line of clause (f) thereof.
(v) The existing definition of “Real Estate Eligibility Requirements” in Section 1.01 of the Credit Agreement is hereby amended by inserting the words “in priority” immediately after the phrase “on the property described therein, subject” in clause (d) thereof.
(b) Amendment to Schedule 5.08(b)(1). Schedule 5.08(b)(1) to the Credit Agreement is hereby amended to add the owned Real Estate set forth on Annex A hereto. The Lenders party hereto hereby waive any Default or Event of Default that may have arisen as a result of the failure of the Borrowers to list the Real Estate set forth on Annex A on Schedule 5.08(b)(1) as of the Closing Date.
(c) Consent to Amendment of Seller Notes. The Lenders party hereto hereby consent to the amendment of each of the Seller Notes to add Xxxxxx & Noble Booksellers, Inc. as a co-issuer thereof and hereby agree that such amendments shall be deemed permitted under the Credit Agreement, including Sections 7.09 and 7.12 thereof.
SECTION 1.02 Effectiveness. This Amendment shall become effective only upon receipt by the Administrative Agent of duly executed counterparts of this Amendment which, when taken together, bear the authorized signatures of each Borrower, the Administrative Agent and the Collateral Agent, and the Super-Majority Required Lenders (the “Amendment Effective Date”).
SECTION 1.03 Cross-References. References in this Amendment to any Section are, unless otherwise specified, to such Section of this Amendment.
SECTION 1.04 Instrument Pursuant to Credit Agreement. This Amendment is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered and applied in accordance with the terms and provisions of the Credit Agreement.
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SECTION 1.05 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS).
SECTION 1.06 Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.
SECTION 1.07 Severability. In case any provision in or obligation under this Amendment or the other Loan Documents shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 1.08 Benefit of Agreement. This Amendment shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided that no Borrower may assign or transfer any of its interest hereunder without the prior written consent of the Administrative Agent and each Lender.
SECTION 1.09 Integration. This Amendment represents the agreement of the Borrowers, the Administrative Agent and the Collateral Agent, and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
SECTION 1.10 Confirmation. Except as expressly amended by the terms hereof, all of the terms of the Credit Agreement, the Security Agreement and the other Loan Documents shall continue in full force and effect and are hereby ratified and confirmed in all respects.
SECTION 1.11 Loan Documents. Except as expressly set forth herein, the amendments provided herein shall not by implication or otherwise limit, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or the Collateral Agent under the Credit Agreement, the Security Agreement or any other Loan Document, nor shall they constitute a waiver of any Event of Default, nor shall they alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Security Agreement or any other Loan Document. Each of the amendments provided herein shall apply and be effective only with respect to the provisions of the Credit Agreement or the Security Agreement specifically referred to by such amendments. Except as expressly amended herein, the Credit Agreement, the Security Agreement and the other Loan Documents shall continue in full force and effect in accordance with the provisions thereof. As used in the Credit Agreement or the Security Agreement, the terms “Agreement”, “herein”, “hereinafter”, “hereunder”, “hereto” and words of similar import shall mean, from and after the date hereof, the Credit Agreement or the Security Agreement, as the case may be.
(Signature Pages Follow)
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
| BORROWERS:
XXXXXX & XXXXX, INC. | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | VP & Treasurer | |
| X. XXXXXX BOOKSELLER, LLC XXXXXX & XXXXX BOOKQUEST LLC XXXXXX & NOBLE BOOKSELLERS, INC. XXXXXX & XXXXX MARKETING SERVICES CORP. XXXXXX & NOBLE PURCHASING, INC. XXXXXX & XXXXX SERVICES, INC. XXXXXXXXXXXXXX.XXX LLC DOUBLEDAY BOOK SHOPS, INC. FICTIONWISE LLC PONDVIEW ASSOCIATES LLC SPARKNOTES LLC STERLING PUBLISHING CO., INC. TIKATOK LLC (f/k/a TKTK ACQUISITION LLC) | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | VP & Treasurer | |
| XXXXXX & NOBLE COLLEGE BOOKSELLERS, LLC (f/k/a BNCB MERGER SUB, LLC) | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | VP & Treasurer | |
First Amendment to Credit Agreement
Signature Page
| AGENTS AND LENDERS:
BANK OF AMERICA, N.A., as Administrative Agent and as Collateral Agent | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Senior Vice President | |
First Amendment to Credit Agreement
Signature Page
| JPMORGAN CHASE BANK, NA., as Co-Syndication Agent | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | SVP | |
First Amendment to Credit Agreement
Signature Page
| XXXXX FARGO RETAIL FINANCE, LLC, as Co-Syndication Agent | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxxxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| SUNTRUST BANK, as Co-Documentation Agent | ||
| By: | /s/ B. Xxxx Xxxxxx | |
| Name: | B. Xxxx Xxxxxx | |
| Title: | Director - CIB - ABL | |
First Amendment to Credit Agreement
Signature Page
| US BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| SOVEREIGN BANK, as Co-Senior Managing Agent | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Senior Vice President | |
First Amendment to Credit Agreement
Signature Page
| BANK OF AMERICA, N.A., as a Lender, LC Issuer and Swing Line Lender | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Senior Vice President | |
First Amendment to Credit Agreement
Signature Page
| JPMORGAN CHASE BANK, NA., as a Lender and LC Issuer | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Senior Vice President | |
First Amendment to Credit Agreement
Signature Page
| XXXXX FARGO RETAIL FINANCE, LLC, as a Lender and LC Issuer | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxxxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| SOVEREIGN BANK, as a Lender and LC Issuer | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Senior Vice President | |
First Amendment to Credit Agreement
Signature Page
| SUNTRUST BANK, as a Lender | ||
| By: | /s/ B. Xxxx Xxxxxx | |
| Name: | B. Xxxx Xxxxxx | |
| Title: | Director - CIB - ABL | |
First Amendment to Credit Agreement
Signature Page
| US BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| ING CAPITAL LLC, as a Lender | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Managing Director | |
First Amendment to Credit Agreement
Signature Page
| RBS BUSINESS CAPITAL, a division of RBS ASSET FINANCE, INC., a subsidiary of RBS CITIZENS, N.A., as a Lender | ||
| By: | /s/ Xxxx X. Bobbin | |
| Name: | Xxxx X. Bobbin | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| CAPITAL ONE LEVERAGE FINANCE CORP., as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxxxx | |
| Title: | Senior Vice President | |
First Amendment to Credit Agreement
Signature Page
| FIFTH THIRD BANK, as a Lender | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| PNC BANK, NATIONAL ASSOCIATION, SUCCESSOR TO NATIONAL CITY BUSINESS CREDIT, INC., as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| UNION BANK, N.A., as a Lender | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
| COMERICA BANK, as a Lender | ||
| By: | /s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | |
| Title: | Corporate Banking Officer | |
First Amendment to Credit Agreement
Signature Page
| MANUFACTURERS AND TRADERS TRUST COMPANY, as a Lender | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Assistant Vice President | |
First Amendment to Credit Agreement
Signature Page
| FIRST HAWAIIAN BANK, as a Lender | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Vice President | |
First Amendment to Credit Agreement
Signature Page
ANNEX A
Additions to Owned Real Property Schedule 5.08(b)(1)
| Loan Party |
Street Address |
County | State | |||
| Xxxxxx & Xxxxx Booksellers, Inc. |
00000 Xxxxxxx Xxxxxxx, Xxxxxxxxx, XX | Mecklenburg | NC | |||
| Xxxxxx & Noble Booksellers, Inc. |
000 Xxxxx 00 Xxxxx, Xxxxxxx, XX | Bergen | NJ | |||
First Amendment to Credit Agreement
Signature Page
