EXECUTION VERSION
AMENDMENT NO. 1
This AMENDMENT NO. 1, dated as of February 25, 2005 (this
"Amendment"), is among XXXXXXXX'X INC., a Delaware corporation and a debtor and
debtor in possession under chapter 11 of the Bankruptcy Code (the "Borrower"),
the Subsidiaries of the Borrower listed on the signature pages hereof, each, a
debtor and debtor in possession under chapter 11 of the Bankruptcy Code, as
Subsidiary Guarantors (the "Subsidiary Guarantors"), the Lenders party hereto
and CITICORP USA, INC., as administrative agent for the Lenders and the Issuers
(in such capacity, the "Administrative Agent"), and amends the SECURED
SUPER-PRIORITY DEBTOR IN POSSESSION REVOLVING CREDIT AGREEMENT, dated as of
January 31, 2005 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the Subsidiary Guarantors,
the Lenders and Issuers party thereto and the Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement to make certain amendments as described below; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
Effective as of the Amendment Effective Date, the Credit Agreement is
hereby amended as follows:
(a) The definition of "Borrowing Base" in Section 1.1 (Defined Terms)
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Borrowing Base" means, at any time, subject to any Eligibility
Reserve then in effect, the sum of (a) the lesser of (i) 42.5% of the Net
Balance of the Loan Parties' Eligible Installment Contracts (provided that
the Administrative Agent's may in its sole discretion (exercised
reasonably and in accordance with customary business practices for its
comparable asset based transactions) from time to time change such advance
rate to a percentage not in excess of 42.5%, and each such change shall
become effective three Business Days after written notice of such change
from the Administrative Agent to the Borrower); and (ii) 85.0% of the Net
Orderly Liquidation Value of the Loan Parties' Installment Contracts, and
(b) 85.0% of the Net Orderly Liquidation Value of the Loan Parties'
Eligible Inventory, as adjusted monthly in accordance with the most recent
written appraisal of such Inventory delivered to the Administrative Agent
pursuant to Section 6.11(b), minus any Borrowing Base Reserve in effect as
such time; provided, however, that prior to the date of delivery of the
appraisals referred to in Section 6.11(e), the Net Orderly Liquidation
Value of Installment Contracts shall be determined by the Borrower based
upon the most recent information available to it, which information shall
be in form and substance satisfactory to the Administrative Agent.
(b) The definition of "Borrowing Base Reserve" in Section 1.1
(Defined Terms) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Borrowing Base Reserve" means, at any time, as of three Business Days
after the date of written notice of any determination thereof to the
Borrower by the Administrative Agent, such amounts as the Administrative
Agent may from time to time establish against the Borrowing Base, in the
Administrative Agent's sole discretion exercised reasonably and in
accordance with customary business practices for its comparable asset
based transactions, in order to address an impairment of the value of the
Collateral in the Borrowing Base or an impairment of the Administrative
Agent's Lien thereon, including in any event the following: (a) a reserve
for the consignment of goods purchased but not paid for unless the
consignor thereof has agreed in writing in form and substance satisfactory
to the Administrative Agent that such goods will be treated as owned by
the applicable Loan Party and that such goods and the proceeds thereof are
not subject to any Lien in favor of such consignor or claim of ownership
by such consignor, (b) a reserve for the Loan Parties' gift certificate
and layaway programs and (c) a reserve for any sales tax liability.
(c) The definition of "Cash Concentration Account" in Section 1.1
(Defined Terms) of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Cash Concentration Account" means the deposit account no. 3059-0515
(or such other deposit account as may be notified by the Administrative
Agent to the Borrower) at Citibank, designated as "CUSA F/A/X XXXXXXXX'X
INC. CONCENTRATION A/C", which account shall be under the sole dominion
and control of the Administrative Agent.
(d) The definition of "Eligible Installment Contracts" in Section 1.1
(Defined Terms) of the Credit Agreement is hereby amended as follows:
(i) by amending and restating the first paragraph thereof prior
to clause (a) in its entirety to read as follows:
"Eligible Installment Contracts" means, for each Loan Party as of any
date of determination and without duplication, those Installment
Contracts that constitute Collateral; provided, however, that an
Installment Contract shall not be an Eligible Installment Contract if any
of the following shall be true:
(ii) by amending clause (b) thereof by replacing the reference
to "sixty (60) days" with "thirty (30) days (or, at the sole discretion of the
Administrative Agent exercised reasonably and in accordance with customary
business practices for its comparable asset based transactions, sixty (60)
days)".
(iii) by amending clause (r) thereof by amending and restating
it in its entirety to read as follows: "(r) [Intentionally Omitted]".
(iv) by (A) deleting the word "and" at the end of clause (s)
thereof, (B) adding as new clauses (t), (u) and (v) the following:
(t) the portion of any Installment Contracts constituting unearned
finance charges, unearned credit insurance premiums and unearned warranty
premiums;
2
(u) the portion of any Installment Contracts constituting late fees;
(v) Installment Contracts originated at retail stores that have been
subsequently closed, unless (i) the applicable customer is current on
scheduled payments thereunder or (ii) the payments with respect thereto
have been transferred to another retail store operated by a Loan Party;
and
and (C) renumbering the existing clause (t) thereof as "clause (w)".
(e) The definition of "Eligible Inventory" in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended as follows:
(i) by amending clause (a) by adding at the end of clause (ii)
thereof (but prior to the proviso therein) the following: "and Liens permitted
in clause (g) below".
(ii) by deleting the phrase ", obsolete" from clause (b) of such
definition.
(iii) by (A) deleting the word "and" at the end of clause (k)
thereof, (B) adding as new clauses (l) and (m) the following:
(l) Inventory designated as "credits and trades";
(m) Inventory in the possession of outside processors; and
and (C) renumbering the existing clause (l) thereof as "clause (n)".
(f) The definition of "Equity Cushion" in Section 1.1 (Defined Terms)
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows: "[Intentionally Omitted]".
(g) The definition of "First Day Orders" in Section 1.1 (Defined
Terms) of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"First Day Orders" means all orders entered by the Bankruptcy
Court on the Petition Date or within five Business Days of the Petition
Date or based on motions filed on the Petition Date or within five
Business Days of the Petition Date.
(h) The definitions of "Incremental Projections" and "Projections"
are hereby deleted and each reference in the Credit Agreement to "Projections"
is hereby replaced with "Interim Projections".
(i) The definition of "Permitted Prepetition Claim Payment" in
Section 1.1 (Defined Terms) of the Credit Agreement is hereby amended by
replacing the reference to "$3,000,000" in clause (vi) thereof with
"$5,000,000".
(j) Section 3.2 (Conditions Precedent to the Incremental Facility
Effective Date) of the Credit Agreement is hereby amended as follows:
(i) by deleting subparagraph (ii) of clause (a) in its entirety
and replacing it with the following:
3
(ii) [Intentionally Omitted];
(ii) by deleting subparagraph (iii) of clause (a) in its
entirety and replacing it with the following:
(iii) [Intentionally Omitted]; and
(iii) by deleting subparagraph (i) of clause (c) in its entirety
and replacing it with the following:
(i) A detailed business plan of the Borrower and its Subsidiaries
which shall include a financial forecast (including income statements,
balance sheets, cash flow statements and a detailed listing of
assumptions) on a monthly basis for the first twelve months after the
Closing Date prepared by management of the Borrower.
(iv) by amending subparagraph (v) of clause (c) thereof by
deleting the phrase "and Accounts".
(v) by adding as a new clause (k) thereof the following:
(k) All "Term Loans" under and as defined in the Existing Credit
Agreement, and all undisputed accrued interest, fees and other amounts
payable thereunder, shall (concurrently with the making of the Revolving
Loans on the Incremental Facility Effective Date) have been repaid in
full and the Administrative Agent shall have received a payoff letter
duly executed and delivered by the Borrower and Jewelry Investors II,
L.L.C., as the Term Agent, in form and substance satisfactory to the
Administrative Agent.
(k) Section 4.4(c) (Financial Statements) of the Credit Agreement is
hereby amended by deleting the text, beginning with phrase "The Incremental
Projections will have been prepared", through to the end of such Section 4.4
(c).
(l) Section 4.19(d) (Secured, Super Priority Obligations) of the
Credit Agreement is hereby amended by (i) by replacing the word "and" at the
end of clause (iii) thereof with "," and (ii) adding as a new clause (iv)
thereof the following: "and (iv) the purchase money Lien on the Chief
Executive Office".
(m) Article V (Financial Covenants) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Each of the Borrower and the other Loan Parties agrees with the
Lenders, the Issuers and the Administrative Agent to each of the following as
long as any Obligation or any Revolving Credit Commitment remains outstanding
and, in each case, unless the Requisite Lenders otherwise consent in writing:
SECTION 5.1. MINIMUM EBITDAR.
(a) The Borrower shall have, as of the last day of each Fiscal
Month set forth below, EBITDAR for the twelve Fiscal Months ending on
such day (or with respect to the Fiscal Months ending on or before
October 1, 2005, the period commencing on
4
October 3, 2004 and ending on the last day of such Fiscal Month) of
not less than the amount set forth opposite such Fiscal Month:
------------------------------------- ----------------------------
Fiscal Month Minimum EBITDAR
Ending on or Around
------------------------------------- ----------------------------
March 31, 2005 ($4,500,000)
------------------------------------- ----------------------------
April 30, 2005 ($7,000,000)
------------------------------------- ----------------------------
May 31, 2005 ($8,500,000)
------------------------------------- ----------------------------
June 30, 2005 ($11,000,000)
------------------------------------- ----------------------------
July 31, 2005 ($13,000,000)
------------------------------------- ----------------------------
August 31, 2005 ($14,000,000)
------------------------------------- ----------------------------
September 30, 2005 ($16,000,000)
------------------------------------- ----------------------------
October 31, 2005 ($12,500,000)
------------------------------------- ----------------------------
November 30, 2005 ($6,000,000)
------------------------------------- ----------------------------
December 31, 2005 $0
------------------------------------- ----------------------------
(b) The Borrower shall have, as of the last day of the Fiscal Month
ending on or around January 31, 2006 and each Fiscal Month thereafter,
EBITDAR for the twelve Fiscal Months ending on such day of not less
than amounts to be established by the Administrative Agent, pursuant to
the last paragraph of this Article V, in its sole discretion exercised
reasonably and in accordance with customary business practices for its
comparable asset based transactions.
SECTION 5.2. CAPITAL EXPENDITURES.
(a) The Borrower shall not permit Capital Expenditures (other than
Capital Expenditures permitted pursuant to Section 8.1(k)) to be made or
incurred during the calendar year ended December 31, 2005 to be in excess
of $5,000,000.
(b) The Borrower shall not permit Capital Expenditures (other than
Capital Expenditures permitted pursuant to Section 8.1(k)) to be made or
incurred during the calendar year ended December 31, 2006 and each
calendar year thereafter to be in excess of amounts to be established by
the Administrative Agent, pursuant to the last paragraph of this Article
V, in its sole discretion exercised reasonably and in accordance with
customary business practices for its comparable asset based transactions.
The Administrative Agent shall, in consultation with the Borrower,
establish the respective amounts for each of the financial covenants
referred to in Sections 5.1(b) and 5.2(b) on or before January 15, 2006
based upon the Administrative Agent's analysis of the Borrower's annual
business plan for the calendar year beginning January 1, 2006 delivered
by the Borrower pursuant to Section 6.1(e) (or, if the Borrower shall
fail to deliver such annual business plan in accordance with Section
6.1(e), based upon the Administrative Agent's analysis of the most
recent information available to the Administrative Agent). Such
analysis by the Administrative Agent and the establishment of such
covenant levels shall be conducted reasonably and in accordance with
customary business practices for its comparable asset based
transactions. Upon the Administrative Agent establishing the respective
amounts for each of the financial covenants referred to in Sections
5.1(b) and 5.2(b), such amounts shall be deemed incorporated into such
5
provisions of this Agreement pursuant to an annex to this Agreement
delivered by the Administrative Agent to the Borrower.
(n) Section 6.1(e) (Business Plans) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(e) Business Plan. Not later than December 31 of each calendar year,
and containing substantially the types of financial information contained
in the Projections, (i) the annual business plan of the Borrower and its
Subsidiaries for the period beginning on January 1 of the next succeeding
calendar year and ending on the second anniversary of the Closing Date
approved by the Board of Directors of the Borrower, (ii) forecasts
prepared by management of the Borrower for each fiscal month in the next
succeeding calendar year, and (iii) forecasts prepared by management of
the Borrower for each of the succeeding calendar years through the
calendar year in which the Revolving Credit Termination Date is scheduled
to occur, including, in each instance described in clause (ii) and clause
(iii) above, (A) a projected year-end Consolidated balance sheet and
income statement and statement of cash flows and (B) a statement of all
of the material assumptions on which such forecasts are based.
(o) Section 6.1(i) (Cash Flows) of the Credit Agreement is hereby
amended and restated in its entirety as follows:
(i) Cash Flows. The Borrower shall deliver, as soon as available and
in any event not later than Monday of each week, a 13-week rolling cash
flow forecast, which forecast shall (i) detail projected cash receipts
and cash disbursements on a weekly basis for the current week and the
next 12 weeks, (ii) set forth in comparative form the actual cash
receipts and cash disbursements for the prior week and the variance from
the projections for such prior week and (iii) otherwise be in form and
detail reasonably satisfactory to the Administrative Agent.
(p) Section 6.11 (Borrowing Base Determinations) of the Credit
Agreement is hereby amended as follows:
(i) by amending clause (a) thereof by deleting the phrase
"together with a detailed calculation as to the amount of the Equity Cushion
as of such date" from such clause.
(ii) by amending and restating clause (b) thereof in its
entirety as follows:
(b) The Borrower shall conduct, or shall cause to be conducted, at
its expense and upon request of the Administrative Agent, such
appraisals, investigations and reviews as the Administrative Agent
shall request for the purpose of determining the Borrowing Base, all
upon notice and at such times during normal business hours and as often
as may be reasonably requested, and all of which appraisals,
investigations and reviews shall (if applicable) be prepared by third
parties acceptable to and engaged by the Administrative Agent;
provided, however, that unless a Default or Event of Default shall be
continuing, the Administrative Agent shall request (i) no more than
four such appraisals, investigations and reviews with respect to the
Inventory of the Borrower and its Subsidiaries and (ii) no more than
four such appraisals, investigations and reviews with respect to the
Accounts and Installment Contracts of the Borrower and its
6
Subsidiaries, in each case during any calendar year; provided, further
that, if requested by the Borrower, the Administrative Agent will
(unless the Administrative Agent reasonably objects thereto), obtain or
conduct such appraisals, investigations and reviews at such additional
times as the Borrower may reasonably request (including after the
completion of the Borrower's going-out-of-business sale program). The
Borrower shall furnish to the Administrative Agent any information that
the Administrative Agent may reasonably request regarding the
determination and calculation of the Borrowing Base including correct
and complete copies of any invoices, underlying agreements, instruments
or other documents and the identity of all Account Debtors in respect
of Accounts referred to therein.
(iii) by adding as a new clause (e) the following:
(e) The Administrative Agent shall have received, in form and
substance satisfactory to it, completed third party appraisals of all
Accounts of the Borrower and its Subsidiaries on or before March 11,
2005 (or such later date acceptable to the Administrative Agent in its
sole discretion as may be notified to the Borrower by the
Administrative Agent).
(q) Section 7.11 (Additional Collateral and Guaranties) of the
Credit Agreement is hereby amended as follows:
(i) clause (c) is hereby amended by inserting at the beginning
of such clause the following: "(x) deliver to the Administrative Agent
within two Business Days from the Incremental Facility Effective Date (or
such later date acceptable to the Administrative Agent in its sole
discretion as may be notified to the Borrower by the Administrative Agent),
(A) all certificates, instruments and other documents representing all
Pledged Stock being pledged pursuant to this Agreement and stock powers for
such certificates, instruments and other documents executed in blank and (B)
all instruments representing all Pledged Notes being pledged pursuant to
this Agreement, in each case duly endorsed in favor of the Administrative
Agent or in blank and (y)".
(ii) by amending and restating the proviso following clause
(f) thereof to read as follows: "provided, however, that the requirements of
this Section 7.11 shall not be applicable to (i) Cougar Reinsurance Company
Ltd. or FCJV, L.P. until March 31, 2005 (or such later date acceptable to
the Administrative Agent in its sole discretion as may be notified to the
Borrower by the Administrative Agent) or (ii) FCJV, LP. so long as it has no
assets." Notwithstanding any other provision of this Agreement (including
Section 11.1), the Collateral shall not include any Stock of Cougar
Reinsurance Company Ltd. until March 31, 2005 (or, if applicable, such later
date determined as aforesaid)".
(r) Section 7.12(a) (Control Accounts; Approved Deposit Accounts)
of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(a) From and after the date which is ten Business Days after the
Incremental Facility Effective Date (or such later date acceptable to
the Administrative Agent in its sole discretion as may be notified to
the Borrower by the Administrative Agent), such Loan Party shall, and
shall cause each of its Subsidiaries to, (x) deposit or cause to be
deposited in the Cash Concentration Account all cash they receive within
one Business Day of such receipt; provided, however, that such period
shall be extended to two Business Days in the case of any such cash
which is deposited in, or transferred to, an
7
Approved Deposit Account prior to it being transferred to the Cash
Concentration Account, (y) not establish or maintain any Securities
Account that is not a Control Account and (z) not establish or maintain
any Deposit Account (other than Deposit Accounts existing on the date
hereof) other than with a Deposit Account Bank; provided, however, that
such Loan Party and each of its respective Subsidiaries may (A) maintain
payroll, withholding tax, escrow and other fiduciary accounts, (B)
maintain accounts with the Administrative Agent, (C) maintain xxxxx cash
at stores in the ordinary course of business and consistent with past
practice in all material respects in an aggregate amount not to exceed
$350,000, (D) maintain balances in accounts in respect of items that have
not yet cleared or to fund pending disbursements from such accounts, (E)
maintain cash balances in a segregated account with Bank of America, N.A.
solely as collateral for Automatic Clearinghouse (ACH) functions
performed by Bank of America, N.A. with respect to any Loan Party as long
as the aggregate balance in such account does not exceed $1,500,000 and
(F) maintain other accounts with cash balances as long as the aggregate
balance in all such accounts does not exceed $500,000.
(s) Section 7.13 (Cash Flow Variances) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"[Intentionally Omitted]".
(t) Section 8.1 (Indebtedness) of the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (j) thereof, (ii)
inserting as a new clause (k) thereof the following:
(k) Capital Lease Obligations and purchase money Indebtedness
incurred by the Loan Parties to finance the acquisition of a point of
sale system; provided, however, that (i) the aggregate outstanding
principal amount of all such Capital Lease Obligations and purchase money
Indebtedness shall not exceed $5,000,000 and (ii) promptly after the
execution thereof, the Borrower shall have delivered to the
Administrative Agent true and correct copies of all agreements, documents
or instruments at any time executed and/or delivered by the Borrower or
any of its Subsidiaries in connection therewith or related thereto
and (iii) renumbering the existing clause (k) thereof as "clause (l)".
(u) Section 8.2(d) (Liens, Etc.) of the Credit Agreement is hereby
amended by (i) adding at the beginning of such clause the subclause number
"(i)" and (ii) adding as a new subclause (ii) thereof the following:
and (ii) Liens granted by such Loan Party or any Subsidiary of such
Loan Party securing Capital Lease Obligations and purchase money
Indebtedness permitted under Section 8.1(k) and limited in each case to
the property subject to such Capital Lease or purchased with the proceeds
of such purchase money Indebtedness;
(v) Section 9.1(o) (Events of Default) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
(o) In the event that the "Disputed Claims" (as defined in the
Final Order) with respect to amounts alleged to be payable pursuant to
the Existing Credit Agreement (other than any claims with respect to
indemnities under the Existing Credit Agreement) are settled or (with
the prior written approval of the Administrative Agent) discharged in
full by payment, then (i) the Borrower shall fail to file a motion or
pleading with the
8
Bankruptcy Court within 14 days following the date of such settlement
or discharge for the release of all prepetition Liens securing
obligations under the Existing Credit Agreement and the loan
documentation related thereto (unless such release is made on a
consensual basis prior to the expiration of such 14-day period) or
(ii) such prepetition Liens shall fail to be released (by Order of the
Bankruptcy Court or otherwise) on or before the date which is 60 days
after the filing of such motion or pleading.
(w) Section 9.1(p) (Events of Default) of the Credit Agreement is
hereby amended by replacing the reference to ", or" with ".".
(x) Section 9.1(q) (Events of Default) of the Credit Agreement is
hereby amended and restated it in its entirety to read as follows: "(q)
[Intentionally Omitted]".
(y) Section 9.1(r) (Events of Default) of the Credit Agreement is
hereby amended and restated it in its entirety to read as follows: "(r)
[Intentionally Omitted]".
(z) Section 11.2(a) (Perfection of Security Interests) of the
Credit Agreement is hereby amended by inserting at the end of such Section
the following:
Prior to the occurrence and continuation of an Event of Default,
the Administrative Agent shall not direct the transfer of any balances
in any Approved Deposit Account to any account other than the Cash
Concentration Account.
(aa) Paragraph (d) of Schedule 1.1 (Permitted Transactions) to the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
(d) Vendor Lien Program. (i) The assumption by the Loan Parties of
the Borrower's pre-petition Vendor Lien Program with such changes
thereto as the Borrower deems necessary or desirable in its reasonable
judgment; provided, that (A) all Liens thereunder shall be fully
subordinated to the Administrative Agent's Liens on any Collateral
subject thereto to at least the same extent such Liens were
subordinated to the obligations of and Liens granted by the Loan
Parties in respect of the Existing Credit Agreement and (B) such
program as so assumed does not require the Loan Parties to make any
payments of any prepetition claims not permitted by the following
clause (ii) or clause (iii); (ii) the payment by the Loan Parties of
(A) up to $4,754,000 in respect of the standstill amount of prepetition
obligations under the prepetition Vendor Lien Program at any time on or
after the later of the entry of the Final Order and the Incremental
Facility Effective Date and (B) up to $19,000,000 of additional
prepetition obligations under the Vendor Lien Program pursuant to a
payment plan which shall be reasonably acceptable to the Administrative
Agent and the Borrower (which balance may in any event may be paid in
connection with the consummation of a plan of reorganization); and
(iii) the payment by the Loan Parties to vendors in respect of
prepetition amounts under the Vendor Lien Program (to the extent not
paid pursuant to clause (ii) above) of an aggregate amount equal to the
sum of (x) the amount for which the applicable vendors shall have
extended post-petition trade terms of not less than 60 days (unless the
Administrative Agent shall have approved a shorter period with respect
thereto), (y) an amount (determined pursuant to a methodology approved
in advance by the Administrative Agent) attributable to Inventory
provided to the Loan Parties on consignment by the applicable vendors;
and (z) an amount equal to the credit extended to any Loan Party by
vendors in exchange for unsold Inventory which has been returned to the
applicable vendors and which credit is to be applied by the Loan
Parties against simultaneous or future purchases of inventory
9
from such vendors; provided, that in each case pursuant to this clause
(iii), the Available Credit (immediately after giving effect to any
proposed payment pursuant to this clause (iii)) shall be at least
$10,000,000. The foregoing shall not limit the rights of any vendor to
seek payment of any unpaid secured claims held by it under the Vendor
Lien Program in connection with the consummation of a plan of
reorganization with respect to the Loan Parties; and
SECTION 2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT
This Amendment shall become effective as of the date (the "Amendment
Effective Date") each of the following conditions precedent shall have been
satisfied:
(a) Amendment. The Administrative Agent shall have received this
Amendment, duly executed by each Loan Party, the Lenders and the
Administrative Agent.
(b) Incremental Facility Effective Date. The Incremental Facility
Effective Date shall occur concurrently with the Amendment Effective Date.
(c) Representations and Warranties. The representations and
warranties set forth in Article IV (Representations and Warranties) of the
Credit Agreement and in the other Loan Documents shall be true and correct all
material respects on and as of the Amendment Effective Date with the same
effect as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall have been true and correct in
all material respects as of such earlier date.
(d) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on the Amendment Effective Date.
(e) No Litigation. No litigation shall have been commenced against
any Loan Party or any of its Subsidiaries as of the Amendment Effective Date
seeking to restraint or enjoin (whether temporarily, preliminarily or
permanently) the performance of any action by any Loan Party required or
contemplated by this Amendment or the Credit Agreement or any Loan Document.
SECTION 3. REDUCTION OF THE REVOLVING CREDIT COMMITMENTS
On and as of the Amendment Effective Date, the Borrower and the
Lenders agree that the aggregate Revolving Credit Commitments shall
automatically and permanently be reduced to $125,000,000.
SECTION 4. REPRESENTATIONS AND WARRANTIES
On and as of the Amendment Effective Date, each Loan Party hereby
represents and warrants to the Administrative Agent and each Lender as
follows:
(a) this Amendment has been duly authorized, executed and delivered
by such Loan Party, and constitute the legal, valid and binding obligations of
such Loan Party, enforceable against such Loan Party in accordance with its
terms, and the Credit Agreement as amended by this Amendment constitutes the
legal, valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its terms;
10
(b) the representations and warranties set forth in Article IV
(Representations and Warranties) of the Credit Agreement and in the other Loan
Documents are true and correct all material respects on and as of the
Amendment Effective Date with the same effect as though made on and as of such
date, except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
are true and correct in all material respects as of such earlier date;
(c) no Default or Event of Default has occurred and is continuing;
and
(d) no litigation has been commenced against any Loan Party or any of
its Subsidiaries s eeking to restraint or enjoin (whether temporarily,
preliminarily or permanently) the performance of any action by any Loan Party
required or contemplated by this Amendment, the Credit Agreement or any Loan
Document.
SECTION 5. EXPENSES
The Borrower and each other Loan Party agrees to pay on demand in
accordance with, and to the extent required by, the terms of Section 13.3
(Costs and Expenses) of the Credit Agreement all costs and expenses of the
Administrative Agent in connection with the preparation, reproduction,
execution and delivery of this Amendment and all other Loan Documents entered
into in connection herewith (including, without limitation, the reasonable
fees and reasonable out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and all other Loan Documents).
SECTION 6. REFERENCE TO THE EFFECT ON THE LOAN DOCUMENTS
(a) As of the Amendment Effective Date, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of
like import, and each reference in the other Loan Documents to the Credit
Agreement (including, without limitation, by means of words like "thereunder",
"thereof" and words of like import), shall mean and be a reference to the
Credit Agreement as amended hereby, and this Amendment and the Credit
Agreement shall be read together and construed as a single instrument. Each of
the table of contents and lists of Exhibits and Schedules of the Credit
Agreement shall be amended to reflect the changes made in this Amendment as of
the Amendment Effective Date.
(b) Except as expressly amended hereby or specifically waived above,
all of the terms and provisions of the Credit Agreement and all other Loan
Documents are and shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders, Issuers or the Administrative Agent under any
of the Loan Documents, nor constitute a waiver or amendment of any other
provision of any of the Loan Documents or for any purpose except as expressly
set forth herein.
(d) This Amendment is a Loan Document.
SECTION 7. EXECUTION IN COUNTERPARTS
This Amendment may be executed in any number of counterparts and
by different parties in separate counterparts, each of which when so
executed shall be deemed to be
11
an original and all of which taken together shall constitute one and the
same agreement. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature
pages are attached to the same document. Delivery of an executed
counterpart by telecopy shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 8. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the law of the State of New York.
SECTION 9. SECTION TITLES
The section titles contained in this Amendment are and shall be
without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto, except when used to
reference a section. Any reference to the number of a clause, sub-clause or
subsection of any Loan Document immediately followed by a reference in
parenthesis to the title of the section of such Loan Document containing such
clause, sub-clause or subsection is a reference to such clause, sub-clause or
subsection and not to the entire section; provided, however, that, in case of
direct conflict between the reference to the title and the reference to the
number of such section, the reference to the title shall govern absent
manifest error. If any reference to the number of a section (but not to any
clause, sub-clause or subsection thereof) of any Loan Document is followed
immediately by a reference in parenthesis to the title of a section of any
Loan Document, the title reference shall govern in case of direct conflict
absent manifest error.
SECTION 10. NOTICES
All communications and notices hereunder shall be given as provided
in the Credit Agreement.
SECTION 11. SEVERABILITY
The fact that any term or provision of this Agreement is held
invalid, illegal or unenforceable as to any person in any situation in any
jurisdiction shall not affect the validity, enforceability or legality of the
remaining terms or provisions hereof or the validity, enforceability or
legality of such offending term or provision in any other situation or
jurisdiction or as applied to any person
SECTION 12. SUCCESSORS
The terms of this Amendment shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and
assigns.
SECTION 13. WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY
IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY OTHER LOAN
DOCUMENT.
[SIGNATURE PAGES FOLLOW]
12
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first written above.
XXXXXXXX'X INC.,
as Borrower
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
FI STORES LIMITED PARTNERSHIP,
as a Subsidiary Guarantor
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
XXXXXXXX'X MANAGEMENT CORP.,
as a Subsidiary Guarantor
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
XXXXXXXX'X FLORIDA PARTNERSHIP,
as a Subsidiary Guarantor
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
XXXXXXXX'X HOLDING CORP.,
as a Subsidiary Guarantor
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
FCJV HOLDING CORP.,
as a Subsidiary Guarantor
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
XXXXXXXX'X INVESTMENTS LLC,
as a Subsidiary Guarantor
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
XXXXXXXX'X BENEFICIARY INC.,
as a Subsidiary Guarantor
By: /s/ Xxx Xxxxxx
-----------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent and Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
