Exhibit 10.15
FOURTH AMENDMENT TO CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement is made as of this 16th day of
April, 2004 by and among
XX-XXX STORES, INC., an Ohio corporation, having a principal place
of business at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx 00000, as Lead Borrower for
the Borrowers, being
said XX-XXX STORES, INC., and
FCA of Ohio, Inc., an Ohio corporation, having a principal
place of business at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx 00000, and
House of Fabrics, Inc., a Delaware corporation, having a
principal place of business at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx
00000, and
Xx-Xxx Stores Supply Chain Management, Inc., an Ohio
corporation, having a principal place of business at 0000
Xxxxxx Xxxx, Xxxxxx, Xxxx 00000
each of the Lenders party to the Credit Agreement (defined below)
(together with each of their successors and assigns, referred to
individually as a "Lender" and collectively as the "Lenders"), and
FLEET NATIONAL BANK, as Issuing Bank, a national banking association
having a place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000; and
FLEET RETAIL GROUP, INC. (f/k/a Fleet Retail Finance Inc.), as
Administrative Agent and Collateral Agent for the Lenders, a Delaware
corporation, having its principal place of business at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000; and
CONGRESS FINANCIAL CORPORATION, as Documentation Agent; and
GMAC COMMERCIAL FINANCE LLC (f/k/a GMAC Commercial Credit LLC), NATIONAL
CITY BUSINESS CREDIT, INC. AND THE CIT GROUP/BUSINESS CREDIT, INC., as
Co-Agents
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H
A. Reference is made to the Credit Agreement (as amended and
in effect, the "Credit Agreement") dated as of April 24, 2001 by and
among the Lead Borrower, the Borrowers, the Lenders, the Issuing
Bank, the Agents, the Documentation Agent and the Co-Agents.
B. The parties to the Credit Agreement desire to modify, amend
and waive certain provisions of the Credit Agreement, as provided
herein.
Accordingly, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
2. Amendments to Article I of the Credit Agreement. The provisions of
Article I of the Credit Agreement are hereby amended as follows:
a. by deleting the definition of "Applicable Margin" in its
entirety and substituting the following in its stead:
"Applicable Margin" means the rates for Base Rate Loans and
Eurodollar Loans determined in accordance with the following pricing
grid:
Level Average Excess Availability Base Rate Loans Eurodollar Loans
----- --------------------------- --------------- ----------------
1 Greater than or equal to $150,000,000 0% 1.25%
2 Greater than or equal to $100,000,000 but less than 0% 1.50%
$150,000,000
3 Greater than or equal to $50,000,000 but less than 0% 1.75%
$100,000,000
4 Less than $50,000,000 0% 2.00%
Commencing May 2004, the Applicable Margin shall be adjusted monthly
as of the first day of each calendar month, based upon average
Excess Availability for the immediately preceding calendar month.
Upon the occurrence of an Event of Default, the Applicable Margin
shall be immediately increased to the percentages set forth in Level
4 (even if the Excess Availability requirements for another Level
have been met) and interest shall be determined in the manner set
forth in Section 2.10.
b. by deleting the definition of "Borrowing Base" in its entirety and
substituting the following in its stead:
"Borrowing Base" means, at any time of calculation, an amount equal
to
(a) the Receivables Advance Rate of the face amount of Eligible
Credit Card Receivables, plus
(b) the lesser of (i) Appraisal Percentage of the Appraised Value of
Eligible Inventory, or (ii) the Inventory Advance Rate of (A) the
Cost of Eligible Inventory minus (B) Inventory Reserves; minus -----
(c) the then amount of all Availability Reserves.
c. The definition of "Commitment" is hereby amended by deleting the
words "and Term Commitments" in the third line thereof.
d. The definitions of Eligible Real Estate, FLV, Realty Reserves, Term
Commitment, Term Commitment Percentage, Term Lender and Term Loans
are hereby deleted in their entirety.
e. The definition of "Inventory Advance Rate" is hereby deleted in its
entirety and the following substituted in its stead:
Inventory Advance Rate" means the following percentages for the
periods indicated:
PERIOD INVENTORY ADVANCE RATE
------ ----------------------
January though March of each year 62.5%
April through December of each year 65%
f. By deleting the definition of "Issuing Bank" in its entirety and
substituting the following in its stead:
"Issuing Bank" means Fleet and any other Lender selected by the Lead
Borrower, in their respective capacities as the issuers of Letters
of Credit hereunder and any successors to Fleet or such Lenders in
such capacity. The Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of such
Issuing Bank in which case the term "Issuing Bank shall include any
such Affiliate with respect to Letters of Credit issued by such
Affiliate.
g. The definition of "Lenders" is hereby amended by deleting the second
sentence thereof in its entirety.
h. The definition of "Line Fee" is hereby amended by deleting the
number "0.375%" and substituting the number "0.30%" in its stead.
i. The definition of "Loans" is hereby amended by deleting the words
"Term Loans" appearing therein.
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j. The definition of "Maturity Date" is hereby deleted in its entirety
and the following substituted in its stead:
"Maturity Date" means April 30, 2009.
k. The definition of "Notes" is hereby amended by deleting clause (ii)
thereof in its entirety and renumbering clause (iii) as clause (ii).
l. The definition of "Payment Conditions" is hereby amended by deleting
the number "$60,000,000.00" and substituting the number
"$50,000,000.00" in its stead.
m. The definition of "Reserves" is hereby amended by deleting the words
"realty Reserves" appearing therein.
3. Amendments to Article II of the Credit Agreement. The provisions of
Article II of the Credit Agreement are hereby amended as follows:
a. By deleting Section 2.01(a) in its entirety and substituting the
following in its stead:
(a) Each Revolving Lender severally and not jointly with any
other Lender, agrees, upon the terms and subject to the
conditions herein set forth, to extend credit to the Borrowers
on a revolving basis, in the form of Revolving Loans and
Letters of Credit and in an amount not to exceed the lesser of
such Lender's Revolving Commitment or such Lender's Revolving
Commitment Percentage of the Borrowing Base, subject to the
following limitations:
(i) The aggregate outstanding amount of the Credit
Extensions and Swingline Loans shall not at any time
exceed the lower of (i) $350,000,000 or, in each case,
any lesser amount to which the Commitments have then
been reduced by the Borrowers pursuant to Section 2.15,
and (ii) the then amount of the Borrowing Base.
(ii) No Lender shall be obligated to issue any Letter of
Credit, and Letters of Credit shall be available from
the Issuing Bank, subject to the ratable participation
of all Revolving Lenders, as set forth in Section 2.06.
The Borrowers will not at any time permit the aggregate
Letter of Credit Outstandings to exceed $200,000,000.
(iii) Subject to all of the other provisions of this
Agreement, Revolving Loans that are repaid may be
reborrowed prior to the Termination Date. No new Credit
Extension, however, shall be made to the Borrowers after
the Termination Date.
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b. By deleting Section 2.01(b) in its entirety and substituting the
following in its stead:
(b) Intentionally Omitted.
c. By deleting the second sentence of Section 2.01(c) in its entirety.
d. By deleting the number "$365,000,000" in Section 2.05(b) and
substituting the number "$350,000,000" in its stead.
e. By deleting the number "$150,000,000" in Section 2.06(a) and
substituting the number "$200,000,000" in its stead.
f. By adding the following sentence at the end of Section 2.06(a):
The Lead Borrower and the Issuing Bank shall furnish the
Administrative Agent with written notice of the issuance of any
Letter of Credit on the same Business Day as such Letter of Credit
is issued.
g. By deleting the references to "Exhibit B-2" and " or Term
Commitment" appearing in Section 2.08(a).
h. By deleting the number "0.375%" in Section 2.12 and substituting the
number "0.30%" in its stead.
i. By deleting the words "and then to the Term Loans" in Section
2.18(a) and in Section 2.18(c).
j. By deleting the last sentence of Section 2.18(d) in its entirety.
k. By deleting the words "and all amounts required to be applied to
Term Loans hereunder shall be applied ratably in accordance with
each Term Lender's Term Commitment Percentage" at the end of Section
2.18(e).
4. Amendments to Article VI of the Credit Agreement. The provisions of
Article VI of the Credit Agreement are hereby amended as follows:
a. The provisions of Section 6.01(a)(vii) are hereby deleted in their
entirety and the following substituted in their stead:
(vii) Indebtedness incurred to finance any Real Estate owned by any
Loan Party or incurred in connection with sale-leaseback
transactions permitted hereunder, provided that the terms of such
Indebtedness are reasonably acceptable to the Administrative Agent;
b. The provisions of Section 6.02(f) are hereby amended by deleting the
period and adding the following at the end thereof:
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provided further that the Collateral Agent may in its reasonable
discretion, release or subordinate its Lien on the Real Estate so
financed or sold.
c. By deleting the provisions of Section 6.04(g) added by the Second
Amendment (retaining Section 6.04(g) added by the Third Amendment to
Credit Agreement) to Credit Agreement and substituting the following
in its stead:
(h) Other investments, provided that (i) no Default or Event of
Default exists at the time of, or after giving effect to, the
proposed investment, and (ii) average Excess Availability (A) for
the thirty days prior to the making of any such investment and (B)
on a pro forma basis for the ninety days immediately following the
making of any such investment, shall be equal to or greater than
$50,000,000.
d. By deleting the provisions of Section 6.05(c) in their entirety and
substituting the following in their stead:
(c) sale-leaseback transactions involving any Borrower's Real
Estate;
e. The provisions of Section 6.06(a) are hereby amended by deleting the
number "$5,000,000.00" and substituting the number $10,000,000.00"
in its stead.
f. By deleting the provisions of Section 6.06(b)(iii) in their entirety
and substituting the following in their stead:
(iii) redemptions of Indebtedness due under the Indenture or the
Subordinated Debt Indenture, if the Payment Conditions are then
satisfied.
g. The provisions of Section 6.11(b) are hereby deleted in their
entirety and the following substituted in their stead:
(b) Intentionally Omitted.
5. Amendment to Article IX of Credit Agreement. The provisions of Article
IX of the Credit Agreement are hereby amended as follows:
a. The provisions of Section 9.02(b)(vii) of the Credit Agreement are
hereby deleted in their entirety and the following substituted in
their stead:
(vii) except (A) for Real Estate which is financed in accordance
with the provisions of Section 6.01, (B) for sales described in
Section 6.05, and (C) as permitted in the Security Documents,
release any material portion of the Collateral from the Liens of the
Security Documents without the written consent of each Lender;
b. The provisions of Section 9.02(b)(x) of the Credit Agreement are
hereby deleted in their entirety and the following substituted in
their stead:
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except for Real Estate which is financed in accordance with the
provisions of Section 6.01, subordinate the Obligations hereunder,
or the Liens granted hereunder or under the other Loan Documents, to
any other Indebtedness or Lien, as the case may be, without the
prior written consent of each Lender;
6. Amendment to Schedules and Exhibits. The Schedules and Exhibits to the
Credit Agreement are hereby amended as follows:
a. Exhibit B-2 (Term Notes) is hereby deleted in its entirety.
b. Schedule 1.1 is hereby deleted in its entirety and a new Schedule
1.1 in the form annexed hereto substituted in its stead.
7. Conditions Precedent to Effectiveness. This Fourth Amendment shall not
be effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Administrative Agent:
a. This Fourth Amendment shall have been duly executed and delivered by
the Borrowers and the Lenders, shall be in full force and effect,
and shall be in form and substance satisfactory to the
Administrative Agent and the Lenders.
b. All action on the part of the Borrowers necessary for the valid
execution, delivery and performance by the Borrowers of this Fourth
Amendment shall have been duly and effectively taken and evidence
thereof satisfactory to the Administrative Agent shall have been
provided to the Administrative Agent.
c. The Borrowers shall have executed and delivered to the
Administrative Agent an amendment to the Fee Letter (satisfactory in
form and substance to the Administrative Agent) and shall have paid
all amounts due thereunder as of the effective date of this Fourth
Amendment.
d. The Borrowers shall have provided such additional instruments and
documents to the Administrative Agent as the Administrative Agent
and Administrative Agent's counsel may have reasonably requested.
8. Miscellaneous.
a. Except as otherwise expressly provided herein, all provisions of the
Credit Agreement and the other Loan Documents remain in full force
and effect.
b. This Fourth Amendment may be executed in several counterparts and by
each party on a separate counterpart, each of which when so executed
and delivered shall be an original, and all of which together shall
constitute one instrument.
c. This Fourth Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. No
prior negotiations or discussions shall limit, modify, or otherwise
affect the provisions hereof.
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d. Any determination that any provision of this Fourth Amendment or any
application hereof is invalid, illegal or unenforceable in any
respect and in any instance shall not effect the validity, legality,
or enforceability of such provision in any other instance, or the
validity, legality or enforceability of any other provisions of this
Fourth Amendment.
e. The Borrowers shall pay on demand all costs and expenses of the
Agents, including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution and delivery
of this Fourth Amendment.
f. The Borrowers warrant and represent that the Borrowers have
consulted with independent legal counsel of the Borrowers' selection
in connection with this Fourth Amendment and are not relying on any
representations or warranties of the Agents, the Lenders or their
counsel in entering into this Fourth Amendment.
IN WITNESS WHEREOF, the parties have duly executed this Fourth Amendment
as of the day and year first above written.
XX-XXX STORES, INC.
as Lead Borrower and Borrower
by /s/ Xxxxxx X. Xxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Finance
FCA OF OHIO, INC.
as Borrower
by /s/ Xxxxxx X. Xxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
HOUSE OF FABRICS, INC.
as Borrower
by /s/ Xxxxxx X. Xxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
XX-XXX STORES SUPPLY CHAIN MANAGEMENT,
INC.
as Borrower
by /s/ Xxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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FLEET RETAIL GROUP, INC.,
as Administrative Agent, as Collateral
Agent, as Swingline Lender, and as Lender
By:/s/ Xxxxxx Xxxxx
_________________________________
Name: Xxxxxx Xxxxx
______________________________
Title: Director
_______________________________
FLEET NATIONAL BANK,
as Issuing Bank
By: /s/ Xxxxxx Xxxxx
________________________________
Name: Xxxxxx Xxxxx
______________________________
Title: Director
_______________________________
CONGRESS FINANCIAL CORPORATION, as
Documentation Agent and Lender
By:/s/ Xxxx Xxxxxxxxxx Xx.
_________________________________
Name: Xxxx Xxxxxxxxxx Xx.
______________________________
Title: Vice President
_______________________________
GMAC COMMERCIAL FINANCE LLC
as Co-Agent and Lender
By: /s/ Xxxxxx Xxxx
_________________________________
Name: Xxxxxx Xxxx
______________________________
Title: Senior Vice President
_______________________________
NATIONAL CITY BUSINESS CREDIT, INC.
as Co-Agent and Lender
By: /s/ Xxxxxxx X. Fine
_________________________________
Name: Xxxxxxx X. Fine
______________________________
Title: Director
_______________________________
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THE CIT GROUP/BUSINESS CREDIT, INC.
as Co-Agent and Lender
By: /s/ Xxxx Xxxxxxx
_________________________________
Name: Xxxx Xxxxxxx
______________________________
Title: Vice President
_______________________________
FOOTHILL CAPITAL CORPORATION
as Lender
By:_________________________________
Name:_____________________________
Title:_______________________________
THE PROVIDENT BANK
as Lender
By:_________________________________
Name:______________________________
Title:_______________________________
COMERICA BANK
as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxx
______________________________
Title: Vice President
_______________________________
GENERAL ELECTRIC CAPITAL CORPORATION
as Lender
By: /s/ Xxxx Xxxxx
________________________________
Name: Xxxx Xxxxx
______________________________
Title: Duly Authorized Signatory
_______________________________
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SIEMENS FINANCIAL SERVICES, INC.
as Lender
By: /s/ Xxxxx Xxxxxx
________________________________
Name: Xxxxx Xxxxxx
______________________________
Title: Vice President-Credit
_______________________________
RZB FINANCE, LLC
as Lender
By: /s/ Xxxxxxxxx Xxxxx /s/ Xxxx X Xxxxxxx
__________________________________________
Name: Xxxxxxxxx Xxxxx Xxxx X Xxxxxxx
_____________________________________
Title: Vice President/Group Vice President
__________________________________________
US BANK N.A.
as Lender
By: /s/ Xxxxx X. Xxxxxx
________________________________
Name: Xxxxx X. Xxxxxx
______________________________
Title: AVP
_______________________________
KEY BANK NATIONAL ASSOCIATION
as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxxx X. Xxxxxxx
______________________________
Title: Assistant Vice President
_______________________________
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XXXXXXX BUSINESS CREDIT CORPORATION (f/k/a
Whitehall Business Credit Corporation)
as Lender
By: /s/ Xxxxx Xxxxxxx
________________________________
Name: Xxxxx Xxxxxxx
______________________________
Title: Vice President
_______________________________
LASALLE BUSINESS CREDIT, LLC
as Lender
By: /s/ Xxxxxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxxxxx X. Xxxxxxx
______________________________
Title: First Vice President
_______________________________
XXXXXXX & CO.
as Lender
By: ________________________________
Name: ______________________________
Title: _______________________________
XXXXX XXXXX SENIOR INCOME TRUST
as Lender
By: ________________________________
Name: ______________________________
Title: _______________________________
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XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: ________________________________
Name: ______________________________
Title: _______________________________
OXFORD STRATEGIC LOAN FUND
By: ________________________________
Name: ______________________________
Title: _______________________________
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