WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
This Waiver and Amendment, dated as of January 31, 1998, is
entered into by and among XXXX STORES, INC. (the "Company"), BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for itself
and the Banks (the "Agent"), and the several financial institutions
party to the Credit Agreement (collectively, the "Banks").
RECITALS
A. The Company, Banks, and Agent are parties to a Credit
Agreement dated as of September 15, 1997 (the "Credit Agreement")
pursuant to which the Agent and the Banks have extended certain credit
facilities to the Company.
B. The Company has requested the waiver of certain terms of the
Credit Agreement to permit the formation and capitalization of the new
Subsidiaries listed on Exhibit A (the "Subsidiaries").
C. The Banks are willing to provide such waiver, subject to the
terms and conditions of this Waiver and Amendment.
AGREEMENT
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to them in
the Credit Agreement.
2. Waiver. The Banks hereby consent to the formation and
capitalization of the Subsidiaries, substantially in accordance with
the plan previously provided to the Banks, and agree that the
formation and capitalization of the Subsidiaries and the execution by
such Subsidiaries of the guaranties required by this Waiver and
Amendment, shall not be considered in calculating compliance with
section 7.04 of the Credit Agreement.
3. Amendment to Credit Agreement. Section 8.01 of the Credit
Agreement, "Event of Default," is hereby amended by adding the
following subparagraph:
(n) Guarantor Defaults. Any Person executing a guaranty of
the Company's obligations under this Agreement (each a
"Guarantor") fails in any material respect to perform or observe
any term, covenant or agreement in the Guaranties; or any such
guaranty is for any reason partially (including with respect to
future advances) or wholly revoked or invalidated, or otherwise
ceases to be in full force and effect, or any Guarantor or any
other Person contests in any manner the validity or
enforceability thereof or denies that it has any further
liability or obligation thereunder.
4. Effective Date. This Waiver and Amendment will become
effective (the "Effective Date") on the later of the date of this
Waiver and Amendment and the date that each of the following
conditions is satisfied, or waived by the Agents and the Banks
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(a) The Agent has received from the Company and each of the
Banks a duly executed original (or, if elected by the Agent, an
executed facsimile copy) of this Waiver and Amendment.
(b) The Agent has received a Guaranty, in form and substance
acceptable to the Agent and the Banks, executed by each Subsidiary.
The Guaranty shall constitute a "Loan Document," as defined in the
Credit Agreement.
(c) The Agent has received evidence, in form and substance
acceptable to the Agent, of the due formation of each Subsidiary and
of the due authorization of the execution of the Guaranty.
(d) All representations and warranties contained herein are
true and correct as of the Effective Date.
5. Balance Sheets. The Company shall, no later than 90 days
after the date of this Waiver and Amendment, provide to the Banks
through the Agent balance sheets for each of the Subsidiaries, dated
as of the Effective Date.
6. Representations and Warranties. The Company hereby represents
and warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Company
of this Waiver and Amendment have been duly authorized by all
necessary corporate and other action and do not and will not require
any registration with, consent or approval of, notice to or action by,
any Person (including any Governmental Authority) in order to be
effective and enforceable. The Credit Agreement as amended by this
Waiver and Amendment constitutes the legal, valid and binding
obligations of the Company, enforceable against it in accordance with
its respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Company
contained in the Credit Agreement are true and correct.
(d) The Company is entering into this Waiver and Amendment
on the basis of its own investigation and for its own reasons, without
reliance upon the Agent and the Banks or any other Person.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit Agreement
shall henceforth refer to the Credit Agreement as amended by this
Waiver and Amendment. This Waiver and Amendment shall be deemed
incorporated into, and a part of, the Credit Agreement.
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(b) This Waiver and Amendment shall be binding upon and
inure to the benefit of the parties hereto and thereto and their
respective successors and assigns. No third party beneficiaries are
intended in connection with this Waiver and Amendment.
(c) This Waiver and Amendment shall be governed by and
construed in accordance with the law of the State of California.
(d) This Waiver and Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument. Each of the parties hereto understands and agrees that
this document (and any other document required herein) may be
delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be
followed promptly by mailing of a hard copy original, and that receipt
by the Agent of a facsimile transmitted document purportedly bearing
the signature of a Bank or the Company shall bind such Bank or the
Company, respectively, with the same force and effect as the delivery
of a hard copy original. Any failure by the Agent to receive the hard
copy executed original of such document shall not diminish the binding
effect of receipt of the facsimile transmitted executed original of
such document of the party whose hard copy page was not received by
the Agent.
(e) This Waiver and Amendment, together with the Credit
Agreement, contains the entire and exclusive agreement of the parties
hereto with reference to the matters discussed herein and therein.
This Waiver and Amendment supersedes all prior drafts and
communications with respect thereto. This Waiver and Amendment may
not be amended except in accordance with the provisions of the Credit
Agreement.
(f) If any term or provision of this Waiver and Amendment
shall be deemed prohibited by or invalid under any applicable law,
such provision shall be invalidated without affecting the remaining
provisions of this Waiver and Amendment or the Credit Agreement,
respectively.
(g) The Company covenants to pay to or reimburse the Agent,
upon demand, for all costs and expenses (including allocated costs of
in-house counsel) incurred in connection with the development,
preparation, negotiation, execution and delivery of this Waiver and
Amendment, including without limitation appraisal, audit, search and
filing fees incurred in connection therewith.
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8. Correction of Error. On the signature page of the original
Credit Agreement, one of the Banks was incorrectly described as
NationsBank, N.A. The correct name of the Bank is NationsBank of
Texas, X.X.
XXXX STORES, INC. BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:/s/Xxxx Xxxx
By: /s/Xxxxxxxxx X. Xxxxx
Title: Senior Vice President Xxxxxxxxx X. Xxxxx
Vice President
BANK OF AMERICA NATIONAL TRUST XXXXX FARGO BANK, N.A.
AND SAVINGS ASSOCIATION, as a Bank
as a Bank
By: /s/ Xxxxxx Xxxxxxx
By:/s/Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx Printed Name Xxxxxx Xxxxxxx
Vice President Title Vice President
By: /s/ Xxxx Xxxxxxxxx
Printed Name Xxxx Xxxxxxxxx
Title Assistant Vice President
BANQUE NATIONALE DE PARIS, NATIONSBANK OF TEXAS, N. A.,
as a Bank as a Bank
By: /s/Xxxxxxxxx Xxxxx By: /s/ Xxxx XxXxxxx
Xxxx XxXxxxx
Printed Name Xxxxxxxxx Xxxxx Senior Vice President
Title Vice President
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Vice President
THE BANK OF NEW YORK,
as a Bank
By: /s/Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Senior Vice President
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EXHIBIT A
SUBSIDIARIES
Texflo, Inc., a California corporation
Xxxx Stores Texas, L.P., a Texas limited partnership
Ross Florida Dress For Less, L.C., a Florida limited liability company
Xxxx Stores Resources, Inc., a California corporation
Xxxx Stores Administration Company, a California corporation
Xxxx Stores Asset Management Company, a California corporation
Xxxx Stores Asset I Company, a California corporation
Xxxx Stores Asset II Company, a California corporation
