EXHIBIT 10.15
FIRST AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
First Amendment, dated as of September 30, 1997, to the
Revolving Credit Agreement, dated as of August 26, 1997, (the "Credit
Agreement"), among WEINER'S STORES, INC., a Delaware corporation (the
"Borrower"), the financial institutions from time to time party thereto
(collectively, the "Lenders" and individually, a "Lender") and THE CIT
GROUP/BUSINESS CREDIT, INC., as a Lender and as agent for the Lenders (in such
capacity, the "Agent").
The Borrower, the Lenders, and the Agent desire to amend
certain provisions of the Credit Agreement. Accordingly, the Borrower, the
Lenders, and the Agent hereby agree as follows:
1. Definitions. All capitalized terms used herein and not
otherwise defined herein are used herein as defined in the Credit Agreement.
2. Existing Definitions. The definition of the term
"Assignment and Acceptance" in Section 1.01 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Assignment and Acceptance shall mean an assignment and
acceptance entered into by a Lender and an assignee, and
accepted by the Agent, substantially in the form of Exhibit E
hereto."
3. Notice of Borrowing; Making of Loans. The fourth sentence
of Section 2.03 (a) of the Credit Agreement is hereby amended to read in its
entirety as follows:
"Except as otherwise provided in Section 2.03(e), on the date
specified in such notice, each Lender shall, subject to the
terms and conditions of this Agreement, make its Pro Rata
Share of such Loan in immediately available funds by wire
transfer to the Agent at its Office not later than 2:00 p.m.
(New York City time)."
4. Letters of Credit. Clause (y) of Section 3.01 (a) (vi) of
the Credit Agreement is hereby amended to read in its entirety as follows:
"(y) after the occurrence of an Event of Default which is not
cured within any applicable grace period, if any, or waived by
the Majority Lenders, not to (A) clear and resolve any
questions of non-compliance of documents, or (B) give any
instructions as to acceptances of any documents or goods."
5. Plan Documents. Section 8.17 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"The Borrower shall not permit the Plan or the Confirmation
Order to be amended, restated, supplemented or otherwise
modified in any way which has an effect upon (i) the ability
of the Borrower or any Subsidiary to perform its obligations
hereunder, under the Fee Letter or under any other Related
Document, (ii) the Lien arising under the Related Documents on
any Collateral, (iii) the legality, validity or
enforceability of this Agreement or any Related Document or
the Lien arising under any Related Document, or (iv) the
aggregate value of the property included in the calculations
of the Borrowing Base, without the prior written consent of
the Majority Lenders."
6. Assignment; Participations. Sections 10.13(a) and (b) of
the Credit Agreement are hereby amended to read in their entirety as follows:
"(a) Each of the Lenders shall have the right at any time to
assign to one or more commercial banks or other financial
institutions (then entitled to receive payments of principal,
interest and fees for the account of its lending office under
this Agreement free from withholding of Federal income tax) a
portion of its rights and obligations under this Agreement
(including, without limitation, a portion of its Revolving
Credit Commitment, the Loans owing to it and its rights and
obligations as a Lender with respect to Letters of Credit) and
the other Related Documents; provided, however, that (i) the
identity of each such assignee shall be subject to the consent
of the Borrower, which consent shall not be unreasonably
withheld or delayed, unless such assignee is on the list of
proposed assignees delivered by the Agent to the Borrower
prior to the date hereof the Borrower shall not have rejected
in writing such assignee in which case the consent of the
Borrower shall not be required, (ii) the parties to each such
assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register (as hereinafter
defined), an Assignment and Acceptance, and (iii) after giving
effect to such assignment, CIT's Revolving Credit Commitment
shall be at least equal to the lesser of (1) $20,000,001 and
(2) an amount equal to a majority of the aggregate amount of
the Revolving Credit Commitments. Upon such execution,
delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance,
(A) the assignee thereunder shall be a party hereto and to the
other Related Documents and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and
obligations (including, without limitation, the obligation to
participate in Letters of Credit) of a Lender hereunder and
thereunder and (B) the assignor thereunder shall, to the
extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations
under this Agreement.
(b) By executing and delivering an Assignment and Acceptance,
the assignor and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, the
assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement
or any other Related Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Related Document furnished
pursuant hereto; (ii) the assignor makes no representation or
warranty and assumes no responsibility with respect
Exhibit 10.15 - Page 2
to the financial condition of the Borrower or any of its
Subsidiaries or the performance or observance by the Borrower
of any of its obligations under this Agreement or any other
Related Document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this
Agreement and the other Related Documents, together with such
other documents and information it has deemed appropriate to
make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent or any
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement
and the other Related Documents; (v) such assignee appoints
and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and
the other Related Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably
incidental thereto, and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement and the other Related
Documents are required to be performed by it as a Lender."
7. Collateral Matters. The first sentence of section 11.08(b)
of the Credit Agreement is hereby amended to read in its entirety as follows:
"The Lenders hereby irrevocably authorize the Agent, at its
option and in its discretion, to release any Lien granted to
or held by the Agent upon any Collateral upon termination of
the Revolving Credit Commitments and payment and satisfaction
of all Loans, Reimbursement Obligations, other Letter of
Credit Exposure (whether or not due) and all other Obligations
which have matured and which the Agent has been notified in
writing are then due and payable; or constituting property
being sold or disposed of if the Borrower certifies to the
Agent that the sale or disposition is made in compliance with
Section 8.04(b) hereof (and the Agent may rely conclusively on
any such certificate, without further inquiry); or
constituting property in which the Borrower owned no interest
at the time the Lien was granted or at any time thereafter."
8. Conditions to Effectiveness. This First Amendment shall
become effective only upon satisfaction in full of the following conditions
precedent (the first date upon which all such conditions have been satisfied
being herein called the "Effective Date"):
(a) The Agent shall have received a counterpart of this First
Amendment which bears the signature of the Borrower.
(b) All legal matters incident to this First Amendment shall
be satisfactory to the Agent and its counsel.
9. Representations and Warranties. The Borrower represents and
warrants to the Lenders as follows:
(a) The execution, delivery and performance by the Borrower
of this First Amendment and the performance by the Borrower of the Credit
Agreement as amended hereby (i)
Exhibit 10.15 - Page 3
have been duly authorized by all necessary corporate action and (ii) do not and
will not contravene its organizational documents or any applicable law.
(b) This First Amendment and the Credit Agreement, as amended
hereby, constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their terms.
(c) The representations and warranties contained in Article VI
of the Credit Agreement are correct on and as of the Effective Date as though
made on and as of the Effective Date (except to the extent such representations
and warranties expressly relate to an earlier date), and no Event of Default or
Potential Default, has occurred and is continuing on and as of the Effective
Date.
10. Continued Effectiveness of Credit Agreement. The Borrower
hereby (i) confirms and agrees that each Related Document to which it is a party
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that on and after the Effective Date of
this First Amendment all references in any such Related Document to "the Credit
Agreement", "thereto", "thereof", "thereunder" or words of like import referring
to the Credit Agreement shall mean the Credit Agreement as amended by this First
Amendment; and (ii) confirms and agrees that to the extent that any such Related
Document purports to grant to the Lenders or the Agent a security interest in or
lien on, any collateral as security for the Obligations of the Borrower from
time to time existing in respect of the Credit Agreement and the Related
Documents, such security interest or lien is hereby ratified and confirmed in
all respects.
11. Miscellaneous.
(a) This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this First
Amendment for any other purpose.
(c) This First Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to choice
of law principles.
(d) The Borrower will pay on demand all fees, costs and
expenses, if any, of Agent in connection with the preparation, execution and
delivery of this First Amendment, including, without limitation, the reasonable
fees, disbursements and other charges of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, counsel to Agent.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
BORROWER:
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WEINER'S STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Exhibit 10.15 - Page 4
Chief Financial Officer
AGENT AND LENDER:
----------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Exhibit 10.15 - Page 5
