EXHIBIT 10.16
THIRD AMENDMENT AGREEMENT
This THIRD AMENDMENT AGREEMENT entered into at Boston, Massachusetts, as of
December 6, 2000, between PAPER WAREHOUSE, INC. and PAPER WAREHOUSE FRANCHISING,
INC. (hereinafter, collectively, the "Borrower"), each a Minnesota corporation
with its principal executive offices at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, and FLEET RETAIL FINANCE INC., f/k/a BankBoston Retail Finance
Inc., with an address of 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the "Lender").
WHEREAS, Lender established a revolving line of credit (the "Revolving Credit")
pursuant to a Loan and Security Agreement dated as of June 7, 1999 (as amended
and modified from time to time, the "Loan Agreement") for the Borrower under
which the Lender agreed to make advances to, and other financial accommodations
for the benefit of, the Borrower until the Maturity Date subject to the terms
and conditions of the Loan Agreement. All initially capitalized terms shall have
the definitions ascribed to them in the Loan Agreement, unless otherwise defined
herein.
WHEREAS, the Borrower has requested that the Lender consent to an amendment to a
certain financial covenant.
WHEREAS, subject to the terms and conditions in this Agreement, the Lender is
willing to modify the terms of the Loan Agreement in order to accommodate the
Borrower's request.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Lender and the Borrower mutually agree as
follows:
1. EFFECTIVE DATE: The "Effective Date" of this Agreement shall be the
date upon which the Lender receives this Third Amendment Agreement
in form and substance satisfactory to the Lender and executed and
delivered by all parties required by the Lender.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended
as follows:
3. (a) Section 2.12 of the Loan Agreement is hereby amended, as
of the Effective Date of this Amendment, to replace the
percentage "fifteen tenths of one percent (0.15%) per annum"
with the percentage "three hundred seventy-five thousandths of
one percent (0.375%) per annum)"; and
4. (b) Clause (b) (EBITDA) of Section 5.12.2 of the Loan
Agreement is hereby amended, effective as of the fiscal
quarter ending in the fiscal month October, 2000, to replace
the amount of "$1,700,000" therein with the amount "$850,000"
in lieu thereof.
5. ENFORCEABILITY, ETC. Except as otherwise expressly provided herein,
the Loan Agreement and the other Loan Documents are, and shall
continue to be, in full force and effect and are hereby ratified and
confirmed in all respects, except that
1
on and after the Effective Date hereof (i) all references in the
Loan Agreement to "this Agreement", "hereto", "hereof", "hereunder",
or words of like import referring to the Loan Agreement shall mean
the Loan Agreement as amended by this Agreement and (ii) all
references in the other Loan Documents to the "Loan Agreement",
"thereto", "thereof", "thereunder" or words of like import referring
to the Loan Agreement shall mean the Loan Agreement as amended by
this Agreement. Except as expressly provided herein, the execution,
delivery and effectiveness of this Agreement shall not operate as an
amendment of any right, power or remedy of the Lender under the Loan
Agreement or any other Loan Document, nor constitute an amendment of
any provision of the Loan Agreement or any other Loan Documents.
6. GENERAL PROVISIONS
a) INTEGRATION; AMENDMENT; WAIVERS. This Agreement and Loan
Documents set forth in full are terms of agreement between the
parties and are intended as the full, complete and exclusive
contract governing the relationship between the parties,
superseding all other discussions, promises, representations,
warranties, agreements and the understandings between the
parties with respect thereto. No term of the Loan Documents
may be modified or amended, nor may any rights thereunder be
waived, except in a writing signed by the party against whom
enforcement of the modification, amendment or waiver is
sought. Any waiver of any condition in, or breach of, any of
the foregoing in a particular instance shall not operate as a
waiver of other or subsequent conditions or breaches of the
same or a different kind. The Lender's exercise or failure to
exercise any rights under any of the foregoing in a particular
instance shall not operate as a waiver of its right to
exercise the same or different rights in subsequent instances.
Except as expressly provided to the contrary in this
Agreement, or in another written agreement, all the terms,
conditions, and provisions of the Loan Documents shall
continue in full force and effect. If in this Agreement's
description of an agreement between the parties, rights and
remedies of Lender or obligations of the Borrower are
described which also exist under the terms of the other Loan
Documents, the fact that this Agreement may omit or contain a
briefer description of any rights, remedies and obligations
shall not be deemed to limit any of such rights, remedies and
obligations contained in the other Loan Documents.
b) PAYMENT OF EXPENSES. Without limiting the terms of the Loan
Documents, the Borrower shall pay all costs and expenses
(including reasonable attorneys' fees) arising under or in
connection with the Loan Documents, including without
limitation, in connection with the negotiation, preparation,
execution, delivery, and enforcement of this Agreement and any
and all consents, waivers or other documents or instruments
relating thereto.
c) NO THIRD PARTY BENEFICIARIES. Except as may be otherwise
expressly provided for herein, this Agreement does not create,
and shall not be construed as creating, any rights enforceable
by any person not a party to this Agreement.
2
d) SEPARABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement
shall nevertheless remain in full force and effect.
e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, which together shall constitute one and the same
agreement.
f) TIME OF ESSENCE. Time is of the essence in each of the
Liabilities of the Borrower and with respect to all conditions
to be satisfied by the Borrower.
g) CONSTRUCTION; VOLUNTARY AGREEMENT; REPRESENTATION BY COUNSEL.
This Agreement has been prepared through the joint efforts of
all the parties. Neither its provisions nor any alleged
ambiguity shall be interpreted or resolved against any party
on the ground that such party's counsel was the draftsman of
this Agreement. Each of the parties declares that such party
has carefully read this Agreement and the agreements,
documents and instruments being entered into in connection
herewith and that such party knows the contents thereof and
sign the same freely and voluntarily. The parties hereto
acknowledge that they have been represented in negotiations
for and preparation of this Agreement and the agreements,
documents and instrument being entered into in connection
herewith by legal counsel of their own choosing, and that each
of them has read the same and had their contents fully
explained by such counsel and is fully aware of their contents
and legal effect.
h) GOVERNING LAW; FORUM SELECTION. This Agreement has been
entered into and shall be governed by the laws of the
Commonwealth of Massachusetts.
i) FURTHER ASSURANCES. The Borrower agrees to take all further
actions and execute all further documents as the Lender may
from time to time reasonably request to carry out the
transactions contemplated by this Agreement.
j) NOTICES. All notices, requests and demands to or upon the
respective parties hereto shall be given in accordance with
the Loan Agreement.
k) MUTUAL WAIVER OF RIGHT TO JURY TRIAL. THE LENDER AND BORROWER
EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING
TO: (I) THIS AGREEMENT, OR ANY OF THE AGREEMENTS, INSTRUMENTS
OR DOCUMENTS REFERRED TO HEREIN; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN THEM; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF THE LENDER OR OF THE BORROWER OR
ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS
OR ANY OTHER PERSONS AFFILIATED WITH THEM;
3
IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE.
l) COPIES AND FACSIMILES. This Agreement and all documents which
have been or may be hereinafter furnished by the Borrower to
the Lender may be reproduced by the Lender by any
photographic, photostatic, microfilm, xerographic or similar
process, and any such reproduction shall be admissible in
evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the
regular course of business).
This Third Amendment Agreement is executed under seal as of the date
written above.
Witness BORROWER:
Paper Warehouse, Inc.
/s/ Xxxxxx X. Xxxxxx By: /s/ Yale X. Xxxxxxxx
---------------------------------- ------------------------
Yale X. Xxxxxxxx, Chairman and
Chief Executive Officer
Witness BORROWER:
Paper Warehouse Franchising, Inc.
/s/ Xxxxxx X. Xxxxxx By: /s/ Yale X. Xxxxxxxx
---------------------------------- ------------------------
Yale X. Xxxxxxxx, Chairman and
Chief Executive Officer
Witness ACCEPTED:
Fleet Retail Finance Inc.
/s/ Xxxxxxx XxXxxxx By: /s/ Xxxxx X. Xxxx
---------------------------------- ------------------------
Name: Xxxxx X. Xxxx
Title: Director
4
