EXHIBIT 10.10
FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Fourth Amendment to Revolving Credit Agreement (this "Amendment"),
effective as of the 17th day of April, 1998, among LOT$OFF CORPORATION (the
"Parent"), 50-OFF TEXAS STORES, L.P., 50-OFF OPERATING COMPANY, and 50-OFF
MULTISTATE OPERATIONS, INC., as Borrowers (together with the Parent
collectively, the "Borrowers"), and GENERAL ELECTRIC CAPITAL CORPORATION, as
Lender (the "Lender"),
W I T N E S S E T H:
WHEREAS, the Borrowers and the Lender are parties to that certain Revolving
Credit Agreement dated as of June 16, 1997, as amended by that certain First
Amendment to Revolving Credit Agreement dated as of August 28, 1997, by that
certain Second Amendment to Revolving Credit Agreement dated as of December 22,
1997 and by that certain Third Amendment to Revolving Credit Agreement dated as
of February 15, 1998 (as further amended, modified, restated or supplemented
from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that certain terms of the Credit
Agreement be waived and amended, and the Lender has agreed to the requested
waivers and amendments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree that
all capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, and further agree as follows:
1. AMENDMENT TO ARTICLE 1. Article 1 of the Credit Agreement,
DEFINITIONS, is hereby amended by adding the following sentence to the end of
the definition of "Obligations":
"Notwithstanding anything to the contrary contained herein or in any
other Loan Document, "Obligations" shall also include the Guaranteed
Obligation (as defined therein) of Parent pursuant to that certain Guaranty
Agreement dated as of April 17, 1998, by Parent in favor of Lender."
2. AMENDMENT TO SECTION 2.14. Section 2.14 of the Credit Agreement,
CLOSING, ADMINISTRATION, AND NON-USE FEES, is hereby amended by deleting the
last sentence in subsection (d) thereof in its entirety.
3. AMENDMENT TO ARTICLE 7. Article 7 of the Credit Agreement is hereby
amended by adding the following Section 7.27:
"Section 7.27 MINIMUM AVAILABILITY. Borrowers will not permit Availability
at any time to be less than $1,500,000.00."
4. CONSENTS.
(a) The Lender hereby consents to the formation by the Borrowers of
Giant Sequoia Corporation, a Delaware corporation (the "General Partner") and
Mountain Laurel Corporation, a Delaware corporation (the "Limited Partner"),
each of which shall be wholly-owned Subsidiaries of the Parent. The Lender
hereby further consents to (a) the formation of W3 L.P., a Delaware limited
partnership (the "Partnership"), by the General Partner and the Limited Partner,
together with Lender as the Preferred Limited Partner (as defined in that
certain Agreement of Limited Partnership of W3 L.P., dated as of April 17, 1998,
(the "Partnership Agreement")), (b) the transfer of the Judgment and the Cause
of Action (each as defined in the Partnership Agreement) to the Partnership, (c)
the Parent's guaranty of the performance of the General Partner and the Limited
Partner under the Partnership Agreement and (d) the Partnership's making the
Preferential Distribution (as defined in the Partnership Agreement) as required
by the Partnership Agreement. In consideration for the consent contained in
this Section 4, Parent agrees to cause the General Partner and the Limited
Partner to make distributions to Parent of all amounts received by them in
respect of the Judgment or the Cause of Action (as defined in the Partnership
Agreement) or otherwise in respect of their interests in the Partnership.
(b) The Lender hereby consents to the Borrowers' delayed delivery of
those reports required to be delivered to the Lender pursuant to Section 5.1(a)
of the Credit Agreement with respect to the Fiscal Period ended March 27, 1998,
PROVIDED that the Lender shall have received such reports not later than May 5,
1998.
5. WAIVERS. The Lender hereby waives (i) each Event of Default listed on
Schedule 1 attached hereto as of the Fiscal Period ended Xxxxx 00, 0000, (xx)
the Event of Default existing as of the date hereof caused by the Borrowers'
failure to make a mandatory repayment of the Loan on March 2, 1998, in the
amount of the Funded Over Advance Amount pursuant to Section 2.18 of the Credit
Agreement (the "Overadvance Default"), and (iii) all of its rights and remedies
under the Credit Agreement which may arise as a result of such Events of
Default; provided, that the failure of the Borrowers to comply with all of the
terms and conditions of the Credit Agreement at all times after the Fiscal
Period ending March 27, 1998 (other than with respect to the Overadvance
Default), shall result in the occurrence of an Event of Default under the Credit
Agreement which is not waived hereby and, further provided, that the waivers
expressly set forth herein
shall not hinder, restrict or otherwise modify the rights and remedies of the
Lender following the occurrence of any other Default or Event of Default
under the Credit Agreement.
6. AMENDMENT FEE. In consideration for (i) the amendments and waivers
contained herein, (ii) the Lender's consent to the transfer of certain assets to
the Partnership in exchange for a general and limited partner interest
concurrently deemed contributed to the General Partner and the Limited Partner,
respectively, which are newly formed Subsidiaries of the Parent, as set forth in
Section 4 hereof, and (iii) the time, effort and expense of the Lender in
connection with review by the Lender of this Amendment, various documents
previously prepared by Amroc Investments, Inc., the Partnership Agreement and
various Loan Documents, including, without limitation, a Guaranty Agreement, a
Security Agreement, Pledge of Partnership Interest and a First Amendment to
Stock Pledge Agreement, each dated as of the date hereof (respectively, the
"Guaranty", the "Security Agreement", the "Pledge Agreement" and the "Amendment
to Pledge Agreement", and collectively, the "Partnership Collateral Documents"),
to be executed in connection with this Amendment, the Borrowers hereby agree
that, as additional compensation for Lender's costs and risks in agreeing to the
terms and conditions of this Amendment, the Borrowers shall pay to the Lender
(x) upon its execution and delivery of this Amendment, a fee in the amount of
$50,000 (the "Amendment Fee") and (y) upon the execution of an amendment to the
Credit Agreement pursuant to which the Borrowers and the Lender shall amend the
financial covenants contained therein, a fee in the amount of $25,000. Such
fees shall be fully earned when due and non-refundable when paid.
7. NO OTHER AMENDMENT OR WAIVER. Except for the consents, amendments and
waivers expressly set forth above, the text of the Credit Agreement and all
other Loan Documents shall remain unchanged and in full force and effect. Other
than as expressly set forth in this Amendment, no consent, amendment or waiver
contained in this Agreement, shall, by implication or otherwise, limit, impair
or otherwise affect the rights and remedies of the Lender. The Borrowers
acknowledge and expressly agree that the Lender reserves the right to, and does
in fact, require strict compliance with all terms and provisions of the Credit
Agreement and the other Loan Documents.
8. PARTNERSHIP COLLATERAL DOCUMENTS. Each Borrower hereby acknowledges
and agrees that the obligations of Parent under the Guaranty are secured by the
Collateral Documents and the Partnership Collateral Documents, and that the
Partnership Collateral Documents shall each constitute "Loan Documents" under
the Credit Agreement.
9. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants in favor of the Lender as follows:
(A) Such Borrower has the corporate power and authority (i)
to enter into this Amendment and (ii) to do all acts and things
as are required or contemplated hereunder to be done, observed
and performed by it;
(B) This Amendment has been duly authorized, validly
executed and delivered by one or more authorized signatories of
such Borrower, and constitutes the legal, valid and binding
obligation of such Borrower, enforceable against it in accordance
with its terms;
(C) The execution and delivery of this Amendment and
performance by such Borrower under the Credit Agreement, as
amended hereby, do not and will not require the consent or
approval of any regulatory authority or governmental authority or
agency having jurisdiction over such Borrower which has not
already been obtained, nor contravene or conflict with the
charter documents of such Borrower, or the provision of any
statute, judgment, order, indenture, instrument, agreement, or
undertaking, to which such Borrower is party or by which any of
its properties is bound;
(D) As of the date hereof, and after giving effect to this
Amendment (i) no Default or Event of Default exists under the
Credit Agreement or is caused by this Amendment other than as
disclosed on Schedule 1 attached hereto, and (ii) to the best of
the Borrowers' knowledge, each representation and warranty set
forth in Article 4 of the Credit Agreement is true and correct in
all material respects, except (x) to the extent previously
fulfilled in accordance with the terms of the Credit Agreement,
as amended hereby, or (y) to the extent relating specifically to
the Closing Date.
10. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Amendment shall become
effective on the date the Lender shall have received (i) a duly executed
original signature page to this Amendment from each of the Borrowers, (ii) a
duly executed Guaranty, Security Agreement, Pledge Agreement and Amendment to
Pledge Agreement, together with related UCC-1 financing statements and stock
certificates, and (iii) payment in full of the Amendment Fee.
11. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia, without reference to the
conflicts or choice of law principles thereof.
12. LOAN DOCUMENT. This Amendment shall be deemed to be a Loan Document
for all purposes.
13. EXPENSES. The Borrowers agree to pay all reasonable expenses of the
Lender incurred in connection with this Amendment and the Partnership Agreement,
and other documents executed in connection therewith, including, without
limitation, all fees and expenses of counsel to the Lender.
14. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
15. PERFORMANCE BY LENDER. If any grantor under the Security Agreement
fails to perform or comply with any of its agreements contained therein or in
any of the other Loan Documents to which it is a party, and the Lender, as
provided for by the terms of the Security Agreement or such other Loan Document,
shall itself perform or comply, or otherwise cause performance or compliance
with the Security Agreement or such other Loan Document, as applicable, the
expenses, including, without limitation, reasonable attorneys' fees of the
Lender incurred with such performance or compliance, together with interest
thereon at the Default Rate, shall be payable by the Borrowers to the Lender on
demand and shall constitute part of the Obligations.
16. INDEMNIFICATION. The Borrowers agree to protect, indemnify and save
harmless the Lender from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses, including, without
limitation, attorneys' fees and expenses (except as may arise from the gross
negligence or willful misconduct of the Lender) imposed upon or incurred by the
Lender by reason of the pledge pursuant to the Pledge Agreement and any claim
and demand whatsoever which may be asserted against the Lender by reason of any
alleged obligation or undertaking to be performed or discharged by the Lender
under the Pledge Agreement. In the event the Lender incurs any liability, loss
or damage by reason of such pledge, or in curing any default or breach by the
General Partner or the Limited Partner of its obligations under the Partnership
Agreement, or in the defense of any claims or demands arising out of or in
connection with the pledge pursuant to the Pledge Agreement, the amount of such
liability, loss or damage shall be added to the Obligations.
IN WITNESS WHEREOF, the parties hereto have caused their respective duly
authorized officers or representatives to execute and deliver this Amendment as
of the day and year first written above.
BORROWERS: LOT$OFF CORPORATION, a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX XX
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Xxxxxxx X. Xxxxxxxx XX
President
50-OFF MULTISTATE OPERATIONS, INC.,a Nevada
corporation
By: /s/ XXXXXXX X. XXXXXXXX XX
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Xxxxxxx X. Xxxxxxxx XX
President
50-OFF OPERATING COMPANY, a Nevada corporation
By: /s/ XXXXXXX X. XXXXXXXX XX
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Xxxxxxx X. Xxxxxxxx XX
President
50-OFF TEXAS STORES, L.P., a Texas limited
partnership
By: 50-OFF Texas Management, Inc.,
a Nevada corporation,
its managing general partner
By: /s/ XXXXXXX X. XXXXXXXX XX
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Xxxxxxx X. Xxxxxxxx XX
President
LENDER: GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XXXXXXX X. XXXXX
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Its: Senior Vice President of
Commercial Finance
SCHEDULE 1 - EXISTING DEFAULTS AND EVENTS OF DEFAULT
