EXHIBIT 10.29.1
Execution Version
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO Amended and Restated Credit Agreement (this
"Amendment") is entered into as of February 19, 2004, among Xxxxxxxxx'x, Inc., a
Delaware corporation (the "Company"), the several financial institutions party
to this Amendment (individually, a "Bank" and, collectively, the "Banks"), Bank
One, NA, as syndication agent (in such capacity, the "Syndication Agent"), Union
Bank of California, N.A. and Xxxxx Fargo Bank, N.A., as documentation agents (in
such capacity, the "Documentation Agents") and Bank of America, N.A., as
administrative agent for itself and the Banks (in such capacity, the "Agent").
WHEREAS, the Company, the Banks party thereto and the Agent entered into a
Credit Agreement dated as of March 22, 2000, as amended and restated as of March
15, 2001, as amended and restated as of March 13, 2002, as further modified by
certain consents effective as of June 14, 2002 and July 5, 2002, respectively,
and as amended and restated as of March 7, 2003 (as in effect as of the date of
this Amendment, the "Credit Agreement") providing for a 364-day revolving credit
facility; and
WHEREAS, the parties hereto desire to amend the Credit Agreement subject to
the terms and conditions of this Amendment;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; References; Interpretation.
(a) Unless otherwise specifically defined herein, each term used herein
(including in the Recitals hereof) which is defined in the Credit Agreement
shall have the meaning assigned to such term in the Credit Agreement.
(b) Each reference to "this Amendment", "hereof", "hereunder", "herein" and
"hereby" and each other similar reference contained in the Credit Agreement, and
each reference to "the Credit Agreement" and each other similar reference in the
other Loan Documents, shall from and after the Effective Date (as defined in
subsection 2) refer to the Credit Agreement as amended and restated hereby.
(c) The rules of interpretation set forth in Section 1.02 of the Credit
Agreement shall be applicable to this Amendment.
2. Amendments to Credit Agreement. Subject to the terms and conditions hereof,
the Credit Agreement is amended as follows, effective as of the date of
satisfaction of the conditions set forth in Section 4 (the "Effective Date"):
(a) Amendments to Article I of the Credit Agreement.
(1) The definition of "Revolving Termination Date" is amended in its
entirety to provide as follows: "Revolving Termination Date" means the
earlier to occur of:
(a) July 31, 2004, as the same may be extended from time to time
pursuant to Section 2.16; and
(b) the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
(2) The defined term, "Company's 2001 Form 10-K" shall be deleted, and
a new defined term, "Company's 2002 Form 10-K" shall be added as follows:
"Company's 2002 Form 10-K" means the Company's Annual Report on
Form 10-K for the fiscal year ended January 30, 2003, as filed with
the SEC pursuant to the Exchange Act.
Accordingly, each reference to "Company's 2001 Form 10-K" in the Credit
Agreement shall be deemed to refer to "Company's 2002 Form 10-K," and each
reference to January 31, 2002 in Sections 1.01, 4.02 and 5.10 of the Credit
Agreement shall be deemed to refer to January 30, 2003.
(b) Amendments to Article V of the Credit Agreement. The two references to
"October 31, 2002" in Section 5.10(b) of the Credit Agreement shall be deleted
and replaced by "October 30, 2003" for each such reference.
(c) Amendments to Article VI of the Credit Agreement. The following
paragraph shall be added to the end of Section 6.01 of the Credit Agreement:
Documents required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.01(f) or (g) (to the extent any such documents are
included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Company posts such documents,
or provides a link thereto on the Company's website on the internet at
xxxx://xxx.xxxxxxxxxx.xxx; or (ii) on which such documents are posted
on the Company's behalf on an internet or intranet website, if any, to
which each Bank and the Agent have access (whether a commercial,
third-party website or whether sponsored by the Agent); provided that:
(x) the Company shall deliver paper copies of such documents to the
Agent or any Bank that requests the Company to deliver such paper
copies until a written request to cease delivering paper copies is
given by the Agent or such Bank and (y) the Company shall notify
(which may be by facsimile or electronic mail) the Agent and each Bank
of the posting of any such documents and provide to the Agent by
electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every
instance the Company shall be required to provide paper copies of the
Compliance Certificates required by Section 6.01(c) to the Agent.
Except for such Compliance Certificates, the Agent shall have no
obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Company with any such
request for delivery, and each Bank shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
Notwithstanding anything to the contrary in Section 10.05, no
Indemnified Person shall be liable for any damages arising from the
use by others of any information or other materials obtained through
IntraLinks or other similar information transmission systems in
connection with this Agreement.
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3. 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 (or would
result from the amendment of the Credit Agreement contemplated hereby).
(b) The execution, delivery and performance by the Company of this
Amendment and the Credit Agreement (as amended by this 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, or notice to or action
by, any Person (including any Governmental Authority) in order to be effective
and enforceable.
(c) This Amendment and the Credit Agreement (as amended by this Amendment)
constitute the legal, valid and binding obligations of the Company, enforceable
against it in accordance with their respective terms.
(d) All representations and warranties of the Company contained in the
Credit Agreement are true and correct (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date and except that this subsection (d)
shall be deemed instead to refer to (x) the last day of the most recent quarter
and year for which financial statements have then been delivered; (y) to the
most recent Form 10-K and Forms 10-Q filed subsequently thereto by the Company
with the SEC, in respect of the representations and warranties made in Section
5.05 of the Credit Agreement; and (z) to the most recent Form 10-K filed by the
Company with the SEC, in respect of the representations and warranties made in
Section 5.10(a) of the Credit Agreement).
(e) There has occurred since January 30, 2003 (except as disclosed in any
public filings since such date), no event or circumstance that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(f) The Company is entering into this 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.
(g) The Company's obligations under the Credit Agreement and under the
other Loan Documents are not subject to any defense, counterclaim, set-off,
right of recoupment, abatement or other claim.
4. Conditions of Effectiveness.
(a) The effectiveness of Section 2 of this Amendment shall be subject to
the satisfaction of each of the following conditions precedent:
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(1) The Agent shall have 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 Amendment.
(2) The Agent shall have received evidence of payment by the Company
of all fees, costs and expenses due and payable as of the Effective Date
hereunder and under the Credit Agreement, including such fees payable to
the Banks as separately agreed, and any costs and expenses payable under
Section 5(g) of this Amendment (including the Agent's Attorney Costs, to
the extent invoiced on or prior to the Effective Date).
(3) The Agent shall have received from the Company a certificate of
the Secretary or Assistant Secretary of the Company, dated as of the
Effective Date, stating that the copy of the resolutions adopted by the
board of directors of the Company on December 6, 2000 and attached to the
certificate of the Secretary of the Company delivered in connection with
the Credit Agreement have not been amended and remain in full force and
effect.
(4) The Agent shall have received all other documents it or any Bank
may reasonably request relating to any matters relevant hereto, all in form
and substance satisfactory to the Agent and each Bank.
(5) The representations and warranties in Section 3 of this Amendment
shall be true and correct on and as of the Effective Date with the same
effect as if made on and as of the Effective Date.
(b) For purposes of determining compliance with the conditions specified in
Section 4(a), each Bank that has executed this Amendment shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each document or
other matter either sent, or made available for inspection, by the Agent to such
Bank for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such Bank.
(c) From and after the Effective Date, the Credit Agreement is amended as
set forth herein. The Credit Agreement (as amended by this Amendment) is hereby
ratified and confirmed in all respects.
(d) The Agent will notify the Company and the Banks of the occurrence of
the Effective Date.
5. Miscellaneous.
(a) The Company acknowledges and agrees that the execution and delivery by
the Agent and the Banks of this Amendment shall not be deemed to create a course
of dealing or an obligation to execute similar amendments or provide any waivers
or other amendments under the same or similar circumstances in the future.
(b) This Amendment shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns.
sf-1625869 4.
(c) This Amendment shall be governed by and construed in accordance with
the law of the State of New York; provided that the Agent and the Banks shall
retain all rights arising under Federal law.
(d) This 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 Amendment contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein. This Amendment
supersedes all prior drafts and communications with respect hereto. This
Amendment may not be amended except in accordance with the provisions of Section
10.01 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed prohibited
by or invalid under any applicable law, such provision shall be invalidated
without affecting the remaining provisions of this Amendment, the Credit
Agreement or the Loan Documents.
(g) The Company agrees to pay or reimburse BofA (including in its capacity
as Agent), upon demand, for all reasonable costs and expenses (including
reasonable Attorney Costs) incurred by BofA (including in its capacity as Agent)
in connection with the development, preparation, negotiation, execution and
delivery of this Amendment.
[Signature pages follow]
sf-1625869 5.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
XXXXXXXXX'X, INC.
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Group Vice President & Treasurer
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BANK OF AMERICA, N.A., as
Agent and as a Bank
By: /s/ Xxx X. Xxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxx
Title: Managing Director
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BANK ONE, NA as Syndication Agent
and as a Bank
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
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UNION BANK OF CALIFORNIA, N.A.
as Documentation Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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XXXXX FARGO BANK, N.A.
as Documentation Agent and as a Bank
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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BANK OF OKLAHOMA, N.A.
By: /s/ Xxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Senior Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By: /s/ Xxxx X. XxXxxx
---------------------------------
Name: Xxxx X. XxXxxx
Title: Executive Director
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
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CREDIT SUISSE FIRST BOSTON
CAYMAN ISLANDS BRANCH
By: /s/ Xxxx X'Xxxx
---------------------------------
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Portfolio Manager
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XXXXXXX XXXXX BANK USA
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Director
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XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxxx X. X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. X. Xxxxxxx
Title: Vice President
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XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxxxx X. Nome
---------------------------------
Name: Xxxxxxx X. Nome
Title: Director
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THE NORTHERN TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
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TCF NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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UMB BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
sf-1625869 S-16
