SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Second Amendment”) is dated as of May 21,
2007, by and among TWEEN BRANDS, INC., a Delaware corporation (the “Borrower”), each of the
Guarantors (as hereinafter defined), the LENDERS (as hereinafter defined), and NATIONAL CITY BANK,
in its capacity as sole lead arranger and administrative agent for the Lenders (in its capacity as
administrative agent, hereinafter referred to the “Agent”), FIFTH THIRD BANK, as syndication agent,
BANK OF AMERICA, N.A., as documentation agent, and LASALLE BANK NATIONAL ASSOCIATION, as managing
agent.
Background
The parties hereto are parties to that Credit Agreement, dated as of October 28, 2005, as
amended by that First Amendment to Credit Agreement and Consent dated as of June 16, 2006, among
the parties hereto (the “Credit Agreement”), and desire to amend certain terms thereof as set forth
herein.
The Borrower has requested an amendment to Section 7.02(i), Dividends and Restricted Payments,
of the Credit Agreement and, upon the terms and conditions hereinafter set forth, the Lenders
desire to consent thereto and amend the Credit Agreement to permit this change.
Operative Provisions
NOW THEREFORE, incorporating the above-defined terms herein and in consideration of the
foregoing, the parties hereto hereby agree as follows:
Article I
Consent and Amendments
Consent and Amendments
1.01 Defined Terms; References. Terms not otherwise defined in this Second Amendment
shall have the respective meanings ascribed to them in the Credit Agreement. As used in this
Second Amendment, “including” is not a term of limitation and means “including without limitation.”
Each reference to “hereof,” “hereunder,” “herein,” and “hereby” and similar references contained
in the Credit Agreement and each reference to “this Agreement” and similar references contained in
the Credit Agreement shall, after the Effective Date (as defined hereinafter), refer to the Credit
Agreement as amended hereby.
1.02 Amendment of Credit Agreement; Consent.
(a) Amendment of Section 7.02(i). Upon the Effective Date, Section 7.02(i) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
[7.02](i) Dividends and Restricted Payments. Each of the Loan Parties shall not, and
shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain
liable to make or pay, any dividend or other distribution of any nature (whether in cash,
property, securities or otherwise) on account of or in respect of its shares of capital
stock, partnership interests or limited liability company interests or on account of the
purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants,
options or rights therefor), partnership interests or limited liability company interests,
except
(i) any dividends or other distributions payable to another Loan Party,
(ii) any dividends on or redemptions or repurchases of its shares of capital
stock (or warrants, options or rights therefor), partnership interests or
limited liability company interests provided that at the time of any such
dividend, redemption, or repurchase, no Event of Default shall exist or result
from such dividend, redemption, or repurchase.
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Article II
Representations and Warranties
Representations and Warranties
As of the date hereof, the Loan Parties, jointly and severally, represent and warrant to the
Agent and each of the Lenders as follows:
2.01 Authorization. The execution and delivery by the Loan Parties of this Second Amendment,
and the performance by each Loan Party of its respective obligations hereunder have been duly
authorized by all necessary respective corporate proceedings on the part of each Loan Party. On
the date of Borrower’s execution hereof, there are no set-offs, claims, defenses, counterclaims,
causes of action, or deductions of any nature against any of the Obligations.
2.02 Valid and Binding. This Second Amendment has been duly and validly executed and
delivered by each Loan Party and constitutes, and the Credit Agreement as amended hereby
constitutes, the legal, valid and binding obligations of each Loan Party enforceable in accordance
with the terms hereof and thereof, except as the enforceability of this Second Amendment or the
Credit Agreement as amended hereby, may be limited by bankruptcy, insolvency or other similar laws
of general application affecting the enforcement of creditors’ rights or by general principles of
equity limiting the availability of equitable remedies.
2.03 No Conflicts. Neither the execution and delivery of this Second Amendment nor compliance
with the terms and provisions hereof or of the Credit Agreement as amended hereby will (a) violate
any Law, (b) conflict with or result in a breach of or a default under the articles or certificate
of incorporation or bylaws or similar organizational documents of any Loan Party or any material
agreement or instrument to which any Loan Party is a party or by which any Loan Party or any of
their respective properties (now owned or hereafter acquired) may be subject or bound, (c) require
any consent or approval of any Person or require a mandatory prepayment or any other payment under
the terms of any material agreement or instrument to which any Loan Party is a party or by which
any Loan Party or any of their respective properties (now owned or hereafter acquired) may be
subject or bound, (d) result in the creation or imposition of any Lien upon any property (now owned
or hereafter acquired) of any Loan Party, or (e) require any authorization, consent, approval,
license, permit, exemption or other action by, or any registration, qualification, designation,
declaration or filing with, any Official Body.
2.04 No Defaults. After giving effect to the amendment made herein: (i) no Event of Default
has occurred and is continuing, and (ii) the representations and warranties of each of Borrower and
the other Loan Parties contained in the Credit Agreement and the other Loan Documents are true and
correct on and as of the date hereof with the same force and effect as though made on such date,
except to the extent that any such representation or warranty expressly relates solely to a
previous date.
Article III
Effect, Effectiveness, Consent of Guarantors
Effect, Effectiveness, Consent of Guarantors
3.01 Effectiveness. This Second Amendment shall become effective as of the date (the
"Effective Date”) on which the Agent shall have received from each of the Borrower, the other Loan
Parties, and the Required Lenders a counterpart hereof signed by such party or facsimile or other
written or electronic confirmation (in form satisfactory to Agent) that such party has signed a
counterpart hereof.
3.02 Amendment. The Credit Agreement is hereby amended in accordance with the terms hereof as
of the Effective Date, and this Second Amendment and the Credit Agreement shall thereafter be one
agreement and any reference to the Credit Agreement in any document, instrument, or agreement shall
thereafter mean and include the Credit Agreement as amended hereby. In the event of irreconcilable
inconsistency between the terms or provisions hereof and the terms or provisions of the Credit Agreement, the terms and provisions
hereof shall control and amend any such irrevocably inconsistent provisions of the Credit
Agreement.
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3.03 Joinder of Guarantors. Each of the Guarantors hereby joins in this Second Amendment to
evidence its consent hereto, and each Guarantor hereby reaffirms its obligations set forth in the
Credit Agreement, as hereby amended, and in the Guaranty Agreement and each other Loan Document
given by it in connection therewith.
Article IV
Miscellaneous
Miscellaneous
4.01 Credit Agreement. Except as amended by the provisions hereof, the Credit Agreement and
all other Loan Documents shall remain in full force and effect and are hereby ratified and
confirmed by the parties hereto.
4.02 Counterparts, Telecopy Signatures. This Second Amendment may be signed in any number of
counterparts each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument; and, delivery of executed signature pages hereof by telecopy
transmission, or other electronic transmission in .pdf or similar format, from one party to another
shall constitute effective and binding execution and delivery of this Second Amendment by such
party.
4.03 Governing Law. This Second Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of Ohio without regard to its conflict of laws principles.
4.04 Severability. If any provision of this Second Amendment, or the application thereof to
any party hereto, shall be held invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provisions or applications of this Second Amendment which can be given effect
without the invalid and unenforceable provision or application, and to this end the parties hereto
agree that the provisions of this Second Amendment are and shall be severable.
4.05 Lenders’ Consent. Each Lender, by its execution hereof, hereby consents to this Second
Amendment pursuant Section 10.01 of the Credit Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, have
executed this Second Amendment as of the day and year first above written.
[SIGNATURE PAGE 1 OF 8 TO SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT]
| TWEEN BRANDS, INC. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| GUARANTORS: | ||
| AMERICAN FACTORING, INC. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| FLORET, LLC | ||
| By: /s/ Xxxxx X. Xxxxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxxxx | ||
| Title: Secretary |
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| JUSTICE STORES, LLC | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| LT HOLDING, INC. | ||
| By: /s/ Xxxxxx Xxxxxxxx | ||
| Name: Xxxxxx Xxxxxxxx | ||
| Title: President and CEO | ||
| [SIGNATURE PAGE 2 OF 8 SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT] |
||
| TWEEN BRANDS IMPORT CORP. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| TWEEN BRANDS DIRECT SERVICES INC. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| TWEEN BRANDS AGENCY, INC. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| TWEEN BRANDS DIRECT, LLC | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| TWEEN BRANDS PURCHASING, INC. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| TWEEN BRANDS STORE PLANNING, INC. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
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| [SIGNATURE PAGE 3 OF 8 TO SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT] |
||
| MISH MASH, LLC | ||
| By: /s/ Xxxxxxx X. Xxxxxx | ||
| Name: Xxxxxxx X. Xxxxxx | ||
| Title: Chairman and CEO | ||
| TOO GC, LLC | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| TWEEN BRANDS SERVICE CO. | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| TWEEN BRANDS INVESTMENT, LLC | ||
| By: /s/ Xxx Xxxxx | ||
| Name: Xxx Xxxxx | ||
| Title: VP Loss Prevention | ||
| TOO IMPORT, LLP | ||
| By: /s/ Xxxxxxx X. Xxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: President and COO, Secretary and Treasurer | ||
| [SIGNATURE PAGE 4 OF 8 TO SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT] |
||
| NATIONAL CITY BANK, individually and as Agent | ||
| By: /s/ Xxxxxx X. Xxxxxx | ||
| Name: Xxxxxx X. Xxxxxx | ||
| Title: Senior Vice President | ||
| [SIGNATURE PAGE 5 OF 8 TO SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT] |
||
| FIFTH THIRD BANK | ||
| By: /s/ Xxxxx X. Xxxxxxx | ||
| Name: Xxxxx X. Xxxxxxx | ||
| Title: Vice President | ||
| [SIGNATURE PAGE 6 OF 8 TO SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT] |
||
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| BANK OF AMERICA, N.A. | ||
| By: /s/ Xxxxx X. Xxxxxx | ||
| Name: Xxxxx X. Xxxxxx | ||
| Title: Vice President | ||
| [SIGNATURE PAGE 7 OF 8 TO SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT] |
||
| LASALLE BANK NATIONAL ASSOCIATION | ||
| By: /s/ Xxxxxxxx Xxxxxx | ||
| Name: Xxxxxxxx Xxxxxx | ||
| Title: First Vice President | ||
| [SIGNATURE PAGE 8 OF 8 TO SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT] |
||
| CITICORP USA, INC. | ||
| By: /s/ Xxxxx Xxxxxx | ||
| Name: Xxxxx Xxxxxx | ||
| Title: Vice President | ||
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