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EXHIBIT 10.1
EXECUTION VERSION
SECOND AMENDMENT
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This SECOND AMENDMENT (this "Agreement") is dated as of July 20, 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, 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.
ARTICLE I.
LIMITED WAIVER AND 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:
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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 two week period ending July 31, 2004 as set forth on
Annex I hereto (the "July 18 Budget") shall satisfy the Borrower's
obligations under Section 7.1(k)(ii); provided that (i) on or before July
31, 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) for the period
commencing on the date hereof and ending on July 31, 2004, the aggregate
amount of outstanding Revolving Loans shall at no time exceed $73,000,000,
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 two
weekly periods ending July 24, 2004 and July 31, 2004, all references to
the "Budget" in Section 8.23 shall be deemed to be references to the July
18 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 representa-
tive 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 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).
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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.
2.4 Schedules 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
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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 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,
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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.
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:
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/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
[signature pages continue]
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THE XXXX COMPANY LLC, a Deleware
Limited company, as debtor and
debtor in possession
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
